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90 | https://www.eeoc.gov/sites/default/files/migrated_files/decisions/01985928.txt | 01985928.txt | TXT | text/plain | 23,726 | August 24, 1999 | 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 v. Small Business Administration
01985928
August 24, 1999
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 Operations
1We 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... | [
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91 | https://www.eeoc.gov/sites/default/files/decisions/2020_12_07/2020002350.pdf | 2020002350.pdf | PDF | application/pdf | 10,514 | Jillian B .,1 Complainant, v. Robert Wilkie, Secretary, Department of Veterans Affairs, Agency. | January 22, 2020 | Appeal Number: 2020002350
Background:
At the time of events giving rise to this complaint, Complainant worked as a Medical Technician, GS-5, at the Agency’s Sierra Nevada Healthcare System located in Reno, Nevada.
On October 22, 2019, Complainant initiated equal e mployment opportunity (EEO) contact alleging
that the Agency subjected her to discrimination on the bases of race (Asian), national origin (Filipino ), color ( Brown ), and age (55) when , on October 1, 2019, Complainant learned the Agency
failed to select her for a Medical Technician, GS -6, position under Announcement No. 20190711-
CBBB004. In a Notice dated November 14, 2019, the Agency articulated Complainant’s claim as
one of Promotion/Non- selection and informed Complainant of the right to file a formal EEO
complaint within fifteen calendar days of receipt of the Notice.
On November 26, 2019, Complainant filed a formal complaint reiterating the above claim of
discrimination for failure to promote. Complainant stated, on August 19, 2019, a Human Resources
Representative i nformed her that management chose a selectee for the Medical Technician
vacancy. Complainant stated, on August 26, 2019, she met with an EEO Representative but “was
still debating” if she really wanted to go through the EEO process. Complainant stated , shortly
thereafter, an Office of Resolution Management (ORM) Representative informed her that she
could file a Freedom of Information Act (FOIA) request regarding the non- selection . Complainant
stated, on October 17, 2019, after receiving FOIA information, she decide d to proceed in the EEO
process. Complainant stated, on October 22, 2019, she contacted ORM again to initia te EEO
contact. In addition, in her formal complaint, Complainant noted that management ( a) denied her
the opportunity to volunteer for timekeeper and ( b) she expressed an interest in rotating to other
areas, such as chemistry and microbiology.
In a decision dated January 22, 2020, the Agency dismissed Complainant’s complaint pursuant to 29 C.F.R. § 1614.107 (a)(2). The Agency stated that Complainant only raised the non-selection
during her initi al EEO contact and that (a) and (b) are not like or related to the issue of non-
selection. The Agency stated that Complainant failed to raise (a) and (b) with an EEO Counselor. Also, the Agency stated that Complainant initiated EEO contact for the non -selection in an
untimely manner. The Agency stated that Complainant learned she was not select ed for the
position about August 22, 2019, but she did not contact EEO with an intent to start the EEO process
until October 22, 2019. The Agency stated that Complainant initiated EEO contact outside of the
45-day statutory timeframe.
The instant appeal from Complainant followed. On appeal, Complainant stated the information
she received under her FOIA request showed that the result o f the panel interview was improper
and she initiated EEO contact after receiving said FOIA information.
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 No. 05970852 (Fe bruary 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 discri mination have become apparent. Id.
The record discloses that the alleged discriminatory event occurred on August 19, 2019
(Complainant stated Human Resources informed her of the non -selection on August 19, 2019) , but
Complainant did not initiate contact with an EEO Counselor until October 22, 2019 (Complainant
stated that she contacted EEO before but she was not ready to start the process until she received
FOIA information regarding the non- selection ). The date of October 22, 2019 is beyond the forty -
five (45) day statutory limitation period. We find October 22, 2019 as the date of initial EEO
contact as it is the date Complainant contact ed an official logically connected to the EEO process,
and exhibit ed intent to begin the EEO process. Allen v. United States Postal Service , EEOC
Request No. 05950933 (July 8, 1996). We note t he time limitation began once Complainant
reasonably suspected discrimination rather than when she fe lt she accumulated sufficient evidence,
such as the FOIA information, to support her suspicion. Further, we find that the incidents alleged
in (a) and (b) appear to be support for Complainant’s claim of non-selection, rather than separate
claims. Notwithstanding, (a) and (b) would also be dismissed for untimely EEO contact as they
occurred prior to the non- selection. We find that Complainant has presented no persuasive
arguments or evidence warranting an extension of the time limit for initiating EEO Counselor
contact. | Jillian B .,1
Complainant,
v.
Robert Wilkie,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 2020002350
Agency No. 200P-0654-2020100395
DECISION
Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC
or Commission) from the Agency's decision dated January 22, 2020, dismissing her complaint of unlawful employment discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title
VII), as amended, 42 U.S.C. § 2000e et seq. and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Medical Technician, GS-5, at the Agency’s Sierra Nevada Healthcare System located in Reno, Nevada.
On October 22, 2019, Complainant initiated equal e mployment opportunity (EEO) contact alleging
that the Agency subjected her to discrimination on the bases of race (Asian), national origin (Filipino ), color ( Brown ), and age (55) when , on October 1, 2019, Complainant learned the Agency
failed to select her for a Medical Technician, GS -6, position under Announcement No. 20190711-
CBBB004. In a Notice dated November 14, 2019, the Agency articulated Complainant’s claim as
one of Promotion/Non- selection and informed Complainant of the right to file a formal EEO
complaint within fifteen calendar days of receipt of the Notice.
On November 26, 2019, Complainant filed a formal complaint reiterating the above claim of
discrimination for failure to promote. Complainant stated, on August 19, 2019, a Human Resources
Representative i nformed her that management chose a selectee for the Medical Technician
vacancy. Complainant stated, on August 26, 2019, she met with an EEO Representative but “was
still debating” if she really wanted to go through the EEO process. Complainant stated , shortly
thereafter, an Office of Resolution Management (ORM) Representative informed her that she
could file a Freedom of Information Act (FOIA) request regarding the non- selection . Complainant
stated, on October 17, 2019, after receiving FOIA information, she decide d to proceed in the EEO
process. Complainant stated, on October 22, 2019, she contacted ORM again to initia te EEO
contact. In addition, in her formal complaint, Complainant noted that management ( a) denied her
the opportunity to volunteer for timekeeper and ( b) she expressed an interest in rotating to other
areas, such as chemistry and microbiology.
In a decision dated January 22, 2020, the Agency dismissed Complainant’s complaint pursuant to 29 C.F.R. § 1614.107 (a)(2). The Agency stated that Complainant only raised the non-selection
during her initi al EEO contact and that (a) and (b) are not like or related to the issue of non-
selection. The Agency stated that Complainant failed to raise (a) and (b) with an EEO Counselor. Also, the Agency stated that Complainant initiated EEO contact for the non -selection in an
untimely manner. The Agency stated that Complainant learned she was not select ed for the
position about August 22, 2019, but she did not contact EEO with an intent to start the EEO process
until October 22, 2019. The Agency stated that Complainant initiated EEO contact outside of the
45-day statutory timeframe.
The instant appeal from Complainant followed. On appeal, Complainant stated the information
she received under her FOIA request showed that the result o f the panel interview was improper
and she initiated EEO contact after receiving said FOIA information.
ANALYSIS AND FINDINGS
The regulation set forth at 29 C.F.R. § 1614.107(a)(2) states, in pertinent part, that an agency shall dismiss a complaint which fails to comply with the applicable time limits contained in 29 C.F.R.
§ 1614.105(a)(1), which in turn, 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 Commission has adopted a “reasonable suspicion” standard (as opposed to a “supportive facts” standard) to determine when the 45- day limitation period is triggered. See
Howard v. Dep't of the Navy , EEOC Request No. 05970852 (Fe bruary 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 discri mination have become apparent. Id.
The record discloses that the alleged discriminatory event occurred on August 19, 2019
(Complainant stated Human Resources informed her of the non -selection on August 19, 2019) , but
Complainant did not initiate contact with an EEO Counselor until October 22, 2019 (Complainant
stated that she contacted EEO before but she was not ready to start the process until she received
FOIA information regarding the non- selection ). The date of October 22, 2019 is beyond the forty -
five (45) day statutory limitation period. We find October 22, 2019 as the date of initial EEO
contact as it is the date Complainant contact ed an official logically connected to the EEO process,
and exhibit ed intent to begin the EEO process. Allen v. United States Postal Service , EEOC
Request No. 05950933 (July 8, 1996). We note t he time limitation began once Complainant
reasonably suspected discrimination rather than when she fe lt she accumulated sufficient evidence,
such as the FOIA information, to support her suspicion. Further, we find that the incidents alleged
in (a) and (b) appear to be support for Complainant’s claim of non-selection, rather than separate
claims. Notwithstanding, (a) and (b) would also be dismissed for untimely EEO contact as they
occurred prior to the non- selection. We find that Complainant has presented no persuasive
arguments or evidence warranting an extension of the time limit for initiating EEO Counselor
contact.
CONCLUSION
After careful review of the record, we AFFIRM the Agency’s dismissal of Complainant’s complaint pursuant to 29 C.F.R. § 1614.107 (a)(2).
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 app ellate 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 Managem ent 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
submi tted 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
supporti ng 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 CI VIL 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 co mplaint 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 org anization,
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 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
September 15, 2020
Date | [
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"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",
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92 | https://www.eeoc.gov/sites/default/files/decisions/2021_01_25/2020002350.pdf | 2020002350.pdf | PDF | application/pdf | 10,514 | Jillian B .,1 Complainant, v. Robert Wilkie, Secretary, Department of Veterans Affairs, Agency. | January 22, 2020 | Appeal Number: 2020002350
Background:
At the time of events giving rise to this complaint, Complainant worked as a Medical Technician, GS-5, at the Agency’s Sierra Nevada Healthcare System located in Reno, Nevada.
On October 22, 2019, Complainant initiated equal e mployment opportunity (EEO) contact alleging
that the Agency subjected her to discrimination on the bases of race (Asian), national origin (Filipino ), color ( Brown ), and age (55) when , on October 1, 2019, Complainant learned the Agency
failed to select her for a Medical Technician, GS -6, position under Announcement No. 20190711-
CBBB004. In a Notice dated November 14, 2019, the Agency articulated Complainant’s claim as
one of Promotion/Non- selection and informed Complainant of the right to file a formal EEO
complaint within fifteen calendar days of receipt of the Notice.
On November 26, 2019, Complainant filed a formal complaint reiterating the above claim of
discrimination for failure to promote. Complainant stated, on August 19, 2019, a Human Resources
Representative i nformed her that management chose a selectee for the Medical Technician
vacancy. Complainant stated, on August 26, 2019, she met with an EEO Representative but “was
still debating” if she really wanted to go through the EEO process. Complainant stated , shortly
thereafter, an Office of Resolution Management (ORM) Representative informed her that she
could file a Freedom of Information Act (FOIA) request regarding the non- selection . Complainant
stated, on October 17, 2019, after receiving FOIA information, she decide d to proceed in the EEO
process. Complainant stated, on October 22, 2019, she contacted ORM again to initia te EEO
contact. In addition, in her formal complaint, Complainant noted that management ( a) denied her
the opportunity to volunteer for timekeeper and ( b) she expressed an interest in rotating to other
areas, such as chemistry and microbiology.
In a decision dated January 22, 2020, the Agency dismissed Complainant’s complaint pursuant to 29 C.F.R. § 1614.107 (a)(2). The Agency stated that Complainant only raised the non-selection
during her initi al EEO contact and that (a) and (b) are not like or related to the issue of non-
selection. The Agency stated that Complainant failed to raise (a) and (b) with an EEO Counselor. Also, the Agency stated that Complainant initiated EEO contact for the non -selection in an
untimely manner. The Agency stated that Complainant learned she was not select ed for the
position about August 22, 2019, but she did not contact EEO with an intent to start the EEO process
until October 22, 2019. The Agency stated that Complainant initiated EEO contact outside of the
45-day statutory timeframe.
The instant appeal from Complainant followed. On appeal, Complainant stated the information
she received under her FOIA request showed that the result o f the panel interview was improper
and she initiated EEO contact after receiving said FOIA information.
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 No. 05970852 (Fe bruary 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 discri mination have become apparent. Id.
The record discloses that the alleged discriminatory event occurred on August 19, 2019
(Complainant stated Human Resources informed her of the non -selection on August 19, 2019) , but
Complainant did not initiate contact with an EEO Counselor until October 22, 2019 (Complainant
stated that she contacted EEO before but she was not ready to start the process until she received
FOIA information regarding the non- selection ). The date of October 22, 2019 is beyond the forty -
five (45) day statutory limitation period. We find October 22, 2019 as the date of initial EEO
contact as it is the date Complainant contact ed an official logically connected to the EEO process,
and exhibit ed intent to begin the EEO process. Allen v. United States Postal Service , EEOC
Request No. 05950933 (July 8, 1996). We note t he time limitation began once Complainant
reasonably suspected discrimination rather than when she fe lt she accumulated sufficient evidence,
such as the FOIA information, to support her suspicion. Further, we find that the incidents alleged
in (a) and (b) appear to be support for Complainant’s claim of non-selection, rather than separate
claims. Notwithstanding, (a) and (b) would also be dismissed for untimely EEO contact as they
occurred prior to the non- selection. We find that Complainant has presented no persuasive
arguments or evidence warranting an extension of the time limit for initiating EEO Counselor
contact. | Jillian B .,1
Complainant,
v.
Robert Wilkie,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 2020002350
Agency No. 200P-0654-2020100395
DECISION
Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC
or Commission) from the Agency's decision dated January 22, 2020, dismissing her complaint of unlawful employment discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title
VII), as amended, 42 U.S.C. § 2000e et seq. and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Medical Technician, GS-5, at the Agency’s Sierra Nevada Healthcare System located in Reno, Nevada.
On October 22, 2019, Complainant initiated equal e mployment opportunity (EEO) contact alleging
that the Agency subjected her to discrimination on the bases of race (Asian), national origin (Filipino ), color ( Brown ), and age (55) when , on October 1, 2019, Complainant learned the Agency
failed to select her for a Medical Technician, GS -6, position under Announcement No. 20190711-
CBBB004. In a Notice dated November 14, 2019, the Agency articulated Complainant’s claim as
one of Promotion/Non- selection and informed Complainant of the right to file a formal EEO
complaint within fifteen calendar days of receipt of the Notice.
On November 26, 2019, Complainant filed a formal complaint reiterating the above claim of
discrimination for failure to promote. Complainant stated, on August 19, 2019, a Human Resources
Representative i nformed her that management chose a selectee for the Medical Technician
vacancy. Complainant stated, on August 26, 2019, she met with an EEO Representative but “was
still debating” if she really wanted to go through the EEO process. Complainant stated , shortly
thereafter, an Office of Resolution Management (ORM) Representative informed her that she
could file a Freedom of Information Act (FOIA) request regarding the non- selection . Complainant
stated, on October 17, 2019, after receiving FOIA information, she decide d to proceed in the EEO
process. Complainant stated, on October 22, 2019, she contacted ORM again to initia te EEO
contact. In addition, in her formal complaint, Complainant noted that management ( a) denied her
the opportunity to volunteer for timekeeper and ( b) she expressed an interest in rotating to other
areas, such as chemistry and microbiology.
In a decision dated January 22, 2020, the Agency dismissed Complainant’s complaint pursuant to 29 C.F.R. § 1614.107 (a)(2). The Agency stated that Complainant only raised the non-selection
during her initi al EEO contact and that (a) and (b) are not like or related to the issue of non-
selection. The Agency stated that Complainant failed to raise (a) and (b) with an EEO Counselor. Also, the Agency stated that Complainant initiated EEO contact for the non -selection in an
untimely manner. The Agency stated that Complainant learned she was not select ed for the
position about August 22, 2019, but she did not contact EEO with an intent to start the EEO process
until October 22, 2019. The Agency stated that Complainant initiated EEO contact outside of the
45-day statutory timeframe.
The instant appeal from Complainant followed. On appeal, Complainant stated the information
she received under her FOIA request showed that the result o f the panel interview was improper
and she initiated EEO contact after receiving said FOIA information.
ANALYSIS AND FINDINGS
The regulation set forth at 29 C.F.R. § 1614.107(a)(2) states, in pertinent part, that an agency shall dismiss a complaint which fails to comply with the applicable time limits contained in 29 C.F.R.
§ 1614.105(a)(1), which in turn, 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 Commission has adopted a “reasonable suspicion” standard (as opposed to a “supportive facts” standard) to determine when the 45- day limitation period is triggered. See
Howard v. Dep't of the Navy , EEOC Request No. 05970852 (Fe bruary 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 discri mination have become apparent. Id.
The record discloses that the alleged discriminatory event occurred on August 19, 2019
(Complainant stated Human Resources informed her of the non -selection on August 19, 2019) , but
Complainant did not initiate contact with an EEO Counselor until October 22, 2019 (Complainant
stated that she contacted EEO before but she was not ready to start the process until she received
FOIA information regarding the non- selection ). The date of October 22, 2019 is beyond the forty -
five (45) day statutory limitation period. We find October 22, 2019 as the date of initial EEO
contact as it is the date Complainant contact ed an official logically connected to the EEO process,
and exhibit ed intent to begin the EEO process. Allen v. United States Postal Service , EEOC
Request No. 05950933 (July 8, 1996). We note t he time limitation began once Complainant
reasonably suspected discrimination rather than when she fe lt she accumulated sufficient evidence,
such as the FOIA information, to support her suspicion. Further, we find that the incidents alleged
in (a) and (b) appear to be support for Complainant’s claim of non-selection, rather than separate
claims. Notwithstanding, (a) and (b) would also be dismissed for untimely EEO contact as they
occurred prior to the non- selection. We find that Complainant has presented no persuasive
arguments or evidence warranting an extension of the time limit for initiating EEO Counselor
contact.
CONCLUSION
After careful review of the record, we AFFIRM the Agency’s dismissal of Complainant’s complaint pursuant to 29 C.F.R. § 1614.107 (a)(2).
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 app ellate 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 Managem ent 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
submi tted 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
supporti ng 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 CI VIL 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 co mplaint 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 org anization,
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 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
September 15, 2020
Date | [
"Howard v. Dep't of the Navy , EEOC Request No. 05970852 (Fe bruary 11, 1999)",
"Allen v. United States Postal Service , EEOC Request No. 05950933 (July 8, 1996)",
"29 C.F.R. § 1614.107",
"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",
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0.00... |
93 | https://www.eeoc.gov/sites/default/files/decisions/2021_01_19/2020002350.pdf | 2020002350.pdf | PDF | application/pdf | 10,514 | Jillian B .,1 Complainant, v. Robert Wilkie, Secretary, Department of Veterans Affairs, Agency. | January 22, 2020 | Appeal Number: 2020002350
Background:
At the time of events giving rise to this complaint, Complainant worked as a Medical Technician, GS-5, at the Agency’s Sierra Nevada Healthcare System located in Reno, Nevada.
On October 22, 2019, Complainant initiated equal e mployment opportunity (EEO) contact alleging
that the Agency subjected her to discrimination on the bases of race (Asian), national origin (Filipino ), color ( Brown ), and age (55) when , on October 1, 2019, Complainant learned the Agency
failed to select her for a Medical Technician, GS -6, position under Announcement No. 20190711-
CBBB004. In a Notice dated November 14, 2019, the Agency articulated Complainant’s claim as
one of Promotion/Non- selection and informed Complainant of the right to file a formal EEO
complaint within fifteen calendar days of receipt of the Notice.
On November 26, 2019, Complainant filed a formal complaint reiterating the above claim of
discrimination for failure to promote. Complainant stated, on August 19, 2019, a Human Resources
Representative i nformed her that management chose a selectee for the Medical Technician
vacancy. Complainant stated, on August 26, 2019, she met with an EEO Representative but “was
still debating” if she really wanted to go through the EEO process. Complainant stated , shortly
thereafter, an Office of Resolution Management (ORM) Representative informed her that she
could file a Freedom of Information Act (FOIA) request regarding the non- selection . Complainant
stated, on October 17, 2019, after receiving FOIA information, she decide d to proceed in the EEO
process. Complainant stated, on October 22, 2019, she contacted ORM again to initia te EEO
contact. In addition, in her formal complaint, Complainant noted that management ( a) denied her
the opportunity to volunteer for timekeeper and ( b) she expressed an interest in rotating to other
areas, such as chemistry and microbiology.
In a decision dated January 22, 2020, the Agency dismissed Complainant’s complaint pursuant to 29 C.F.R. § 1614.107 (a)(2). The Agency stated that Complainant only raised the non-selection
during her initi al EEO contact and that (a) and (b) are not like or related to the issue of non-
selection. The Agency stated that Complainant failed to raise (a) and (b) with an EEO Counselor. Also, the Agency stated that Complainant initiated EEO contact for the non -selection in an
untimely manner. The Agency stated that Complainant learned she was not select ed for the
position about August 22, 2019, but she did not contact EEO with an intent to start the EEO process
until October 22, 2019. The Agency stated that Complainant initiated EEO contact outside of the
45-day statutory timeframe.
The instant appeal from Complainant followed. On appeal, Complainant stated the information
she received under her FOIA request showed that the result o f the panel interview was improper
and she initiated EEO contact after receiving said FOIA information.
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 No. 05970852 (Fe bruary 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 discri mination have become apparent. Id.
The record discloses that the alleged discriminatory event occurred on August 19, 2019
(Complainant stated Human Resources informed her of the non -selection on August 19, 2019) , but
Complainant did not initiate contact with an EEO Counselor until October 22, 2019 (Complainant
stated that she contacted EEO before but she was not ready to start the process until she received
FOIA information regarding the non- selection ). The date of October 22, 2019 is beyond the forty -
five (45) day statutory limitation period. We find October 22, 2019 as the date of initial EEO
contact as it is the date Complainant contact ed an official logically connected to the EEO process,
and exhibit ed intent to begin the EEO process. Allen v. United States Postal Service , EEOC
Request No. 05950933 (July 8, 1996). We note t he time limitation began once Complainant
reasonably suspected discrimination rather than when she fe lt she accumulated sufficient evidence,
such as the FOIA information, to support her suspicion. Further, we find that the incidents alleged
in (a) and (b) appear to be support for Complainant’s claim of non-selection, rather than separate
claims. Notwithstanding, (a) and (b) would also be dismissed for untimely EEO contact as they
occurred prior to the non- selection. We find that Complainant has presented no persuasive
arguments or evidence warranting an extension of the time limit for initiating EEO Counselor
contact. | Jillian B .,1
Complainant,
v.
Robert Wilkie,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 2020002350
Agency No. 200P-0654-2020100395
DECISION
Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC
or Commission) from the Agency's decision dated January 22, 2020, dismissing her complaint of unlawful employment discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title
VII), as amended, 42 U.S.C. § 2000e et seq. and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Medical Technician, GS-5, at the Agency’s Sierra Nevada Healthcare System located in Reno, Nevada.
On October 22, 2019, Complainant initiated equal e mployment opportunity (EEO) contact alleging
that the Agency subjected her to discrimination on the bases of race (Asian), national origin (Filipino ), color ( Brown ), and age (55) when , on October 1, 2019, Complainant learned the Agency
failed to select her for a Medical Technician, GS -6, position under Announcement No. 20190711-
CBBB004. In a Notice dated November 14, 2019, the Agency articulated Complainant’s claim as
one of Promotion/Non- selection and informed Complainant of the right to file a formal EEO
complaint within fifteen calendar days of receipt of the Notice.
On November 26, 2019, Complainant filed a formal complaint reiterating the above claim of
discrimination for failure to promote. Complainant stated, on August 19, 2019, a Human Resources
Representative i nformed her that management chose a selectee for the Medical Technician
vacancy. Complainant stated, on August 26, 2019, she met with an EEO Representative but “was
still debating” if she really wanted to go through the EEO process. Complainant stated , shortly
thereafter, an Office of Resolution Management (ORM) Representative informed her that she
could file a Freedom of Information Act (FOIA) request regarding the non- selection . Complainant
stated, on October 17, 2019, after receiving FOIA information, she decide d to proceed in the EEO
process. Complainant stated, on October 22, 2019, she contacted ORM again to initia te EEO
contact. In addition, in her formal complaint, Complainant noted that management ( a) denied her
the opportunity to volunteer for timekeeper and ( b) she expressed an interest in rotating to other
areas, such as chemistry and microbiology.
In a decision dated January 22, 2020, the Agency dismissed Complainant’s complaint pursuant to 29 C.F.R. § 1614.107 (a)(2). The Agency stated that Complainant only raised the non-selection
during her initi al EEO contact and that (a) and (b) are not like or related to the issue of non-
selection. The Agency stated that Complainant failed to raise (a) and (b) with an EEO Counselor. Also, the Agency stated that Complainant initiated EEO contact for the non -selection in an
untimely manner. The Agency stated that Complainant learned she was not select ed for the
position about August 22, 2019, but she did not contact EEO with an intent to start the EEO process
until October 22, 2019. The Agency stated that Complainant initiated EEO contact outside of the
45-day statutory timeframe.
The instant appeal from Complainant followed. On appeal, Complainant stated the information
she received under her FOIA request showed that the result o f the panel interview was improper
and she initiated EEO contact after receiving said FOIA information.
ANALYSIS AND FINDINGS
The regulation set forth at 29 C.F.R. § 1614.107(a)(2) states, in pertinent part, that an agency shall dismiss a complaint which fails to comply with the applicable time limits contained in 29 C.F.R.
§ 1614.105(a)(1), which in turn, 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 Commission has adopted a “reasonable suspicion” standard (as opposed to a “supportive facts” standard) to determine when the 45- day limitation period is triggered. See
Howard v. Dep't of the Navy , EEOC Request No. 05970852 (Fe bruary 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 discri mination have become apparent. Id.
The record discloses that the alleged discriminatory event occurred on August 19, 2019
(Complainant stated Human Resources informed her of the non -selection on August 19, 2019) , but
Complainant did not initiate contact with an EEO Counselor until October 22, 2019 (Complainant
stated that she contacted EEO before but she was not ready to start the process until she received
FOIA information regarding the non- selection ). The date of October 22, 2019 is beyond the forty -
five (45) day statutory limitation period. We find October 22, 2019 as the date of initial EEO
contact as it is the date Complainant contact ed an official logically connected to the EEO process,
and exhibit ed intent to begin the EEO process. Allen v. United States Postal Service , EEOC
Request No. 05950933 (July 8, 1996). We note t he time limitation began once Complainant
reasonably suspected discrimination rather than when she fe lt she accumulated sufficient evidence,
such as the FOIA information, to support her suspicion. Further, we find that the incidents alleged
in (a) and (b) appear to be support for Complainant’s claim of non-selection, rather than separate
claims. Notwithstanding, (a) and (b) would also be dismissed for untimely EEO contact as they
occurred prior to the non- selection. We find that Complainant has presented no persuasive
arguments or evidence warranting an extension of the time limit for initiating EEO Counselor
contact.
CONCLUSION
After careful review of the record, we AFFIRM the Agency’s dismissal of Complainant’s complaint pursuant to 29 C.F.R. § 1614.107 (a)(2).
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 app ellate 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 Managem ent 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
submi tted 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
supporti ng 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 CI VIL 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 co mplaint 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 org anization,
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 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
September 15, 2020
Date | [
"Howard v. Dep't of the Navy , EEOC Request No. 05970852 (Fe bruary 11, 1999)",
"Allen v. United States Postal Service , EEOC Request No. 05950933 (July 8, 1996)",
"29 C.F.R. § 1614.107",
"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. §... | [
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0.00... |
94 | https://www.eeoc.gov/sites/default/files/migrated_files/decisions/01a34955.txt | 01a34955.txt | TXT | text/plain | 11,700 | 2004 . Michael A. Mazzeo, Complainant, v. John W. Snow, Secretary, Department of the Treasury, Agency. | July 29, 2003 | Appeal Number: 01A34955
Case Facts:
Complainant filed a timely appeal with this Commission from the final
agency decision, dated July 29, 2003, dismissing his complaint of unlawful
employment discrimination.
Complainant initiated EEO Counselor contact on April 29, 2003. In his
formal complaint, dated June 27, 2003, complainant alleged that he was
subjected to discrimination in reprisal for prior EEO activity.
In its final decision dated July 29, 2003, the agency determined that
complainant's complaint consisted solely of the following claim:
On March 20, 2003, [complainant] was advised that he would be reassigned
to a different duty station.
The agency dismissed complainant's complaint for failure to state a claim,
pursuant to 29 C.F.R. § 1614.107(a)(1). Specifically, the agency stated,
[t]here is no evidence that complainant has previously participated
in the EEO complaint process or opposed any practice made unlawful by
[statutes within the purview of the Commission]. Complainant alleges
that [the] agency retaliated against him for filing an agency grievance.
There is no indication that [c]omplainant raised any allegation of
discrimination based on race, color, religion, sex, national origin,
age, disabling condition, or retaliation for prior EEO activity in his
agency grievance.
On appeal, complainant contends that he had participated in the EEO
process, prior to the instant complaint. Specifically, complainant
contends that on September 1, 2002, [he] testified as a witness at an EEO
deposition for [a named agency employee]. Complainant further asserts
that this information was documented and provided to the EEO Counselor.
In response, the agency reiterates that complainant's complaint does
not establish prior EEO activity. The agency states that complainant's
assertion that he served as a witness at an EEO deposition, on September
1, 2002, occurred nine months after complainant's transfer.<1>
In addition, the agency states, for the first time on appeal, that
complainant's initial EEO contact was untimely. Specifically, the agency
asserts that complainant's initial EEO Counselor contact occurred more
than sixteen months after complainant's transfer.
In response to the agency's arguments on appeal, complainant states
in a letter to the Commission, dated October 3, 2003, that the agency
has misstated the matters raised in the instant complaint. Complainant
states that my EEO complaint is not based on my transfer or the grievance
filed because of my transfer. My complaint is based on the retaliatory
actions taken against me from on or about February 2003 to April 2003
as described in the [attachment to my formal EEO complaint].
In regard to complainant's prior EEO activity, the record contains a
chronology provided to the EEO Counselor by complainant during the
pre-complaint process, supporting complainant's assertion that he
participated as a witness in an EEO deposition. In that chronology,
complainant stated that on September 1, 2002, he [t]estified under
oath at [a] deposition for [a named agency employee]. The Commission
determines that the agency improperly dismissed complainant's complaint
for failure to state a claim, on the grounds that though reprisal is
identified as the only basis raised, the record did not show that
complainant had previously engaged in prior EEO activity. Instead,
the Commission determines that the record supports a finding that
complainant properly identified reprisal as a basis, based on prior
protected activity in which he engaged.
However,
Legal Analysis:
the Commission]. Complainant alleges
that [the] agency retaliated against him for filing an agency grievance.
There is no indication that [c]omplainant raised any allegation of
discrimination based on race, color, religion, sex, national origin,
age, disabling condition, or retaliation for prior EEO activity in his
agency grievance.
On appeal, complainant contends that he had participated in the EEO
process, prior to the instant complaint. Specifically, complainant
contends that on September 1, 2002, [he] testified as a witness at an EEO
deposition for [a named agency employee]. Complainant further asserts
that this information was documented and provided to the EEO Counselor.
In response, the agency reiterates that complainant's complaint does
not establish prior EEO activity. The agency states that complainant's
assertion that he served as a witness at an EEO deposition, on September
1, 2002, occurred nine months after complainant's transfer.<1>
In addition, the agency states, for the first time on appeal, that
complainant's initial EEO contact was untimely. Specifically, the agency
asserts that complainant's initial EEO Counselor contact occurred more
than sixteen months after complainant's transfer.
In response to the agency's arguments on appeal, complainant states
in a letter to the Commission, dated October 3, 2003, that the agency
has misstated the matters raised in the instant complaint. Complainant
states that my EEO complaint is not based on my transfer or the grievance
filed because of my transfer. My complaint is based on the retaliatory
actions taken against me from on or about February 2003 to April 2003
as described in the [attachment to my formal EEO complaint].
In regard to complainant's prior EEO activity, the record contains a
chronology provided to the EEO Counselor by complainant during the
pre-complaint process, supporting complainant's assertion that he
participated as a witness in an EEO deposition. In that chronology,
complainant stated that on September 1, 2002, he [t]estified under
oath at [a] deposition for [a named agency employee]. The Commission
determines that the agency improperly dismissed complainant's complaint
for failure to state a claim, on the grounds that though reprisal is
identified as the only basis raised, the record did not show that
complainant had previously engaged in prior EEO activity. Instead,
the Commission determines that the record supports a finding that
complainant properly identified reprisal as a basis, based on prior
protected activity in which he engaged.
However, upon review of the record, the Commission further determines
that the matters set forth in the instant complaint lack precision
and clarity. The EEO Counselor Report and the final agency decision
define complainant's complaint as involving his transfer. Complainant
contends, on appeal however, that his transfer is not the subject of
his formal complaint. Moreover, in his formal complaint, in regard
to the question of what discriminatory actions have been taken against
him, complainant stated that I have detected and have evidence of a
pattern and practice of discriminatory and retaliatory activity against
me because of my participation in a protected activity. Attached to
his formal complaint, complainant lists a chronology of numerous events;
however, it is unclear what precise claims complainant is raising.
EEOC Management Directive 110, Chapter 2 (1999) specifies that at the
counseling stage, the EEO Counselor must be certain that the claims are
clearly defined and that the complainant agrees on how the agency defines
the issues that are to be the subject of the inquiry and subsequent
attempts at resolution. The Commission determines that it is unclear
from the record what claims complainant is raising in his complaint;
therefore, we can not determine whether complainant's complaint fails to
state a claim or if his claims were timely raised with an EEO Counselor. | Michael A. Mazzeo v. Department of the Treasury
01A34955
1/15/2004
.
Michael A. Mazzeo,
Complainant,
v.
John W. Snow,
Secretary,
Department of the Treasury,
Agency.
Appeal No. 01A34955
Agency No. 03-3176
DECISION
Complainant filed a timely appeal with this Commission from the final
agency decision, dated July 29, 2003, dismissing his complaint of unlawful
employment discrimination.
Complainant initiated EEO Counselor contact on April 29, 2003. In his
formal complaint, dated June 27, 2003, complainant alleged that he was
subjected to discrimination in reprisal for prior EEO activity.
In its final decision dated July 29, 2003, the agency determined that
complainant's complaint consisted solely of the following claim:
On March 20, 2003, [complainant] was advised that he would be reassigned
to a different duty station.
The agency dismissed complainant's complaint for failure to state a claim,
pursuant to 29 C.F.R. § 1614.107(a)(1). Specifically, the agency stated,
[t]here is no evidence that complainant has previously participated
in the EEO complaint process or opposed any practice made unlawful by
[statutes within the purview of the Commission]. Complainant alleges
that [the] agency retaliated against him for filing an agency grievance.
There is no indication that [c]omplainant raised any allegation of
discrimination based on race, color, religion, sex, national origin,
age, disabling condition, or retaliation for prior EEO activity in his
agency grievance.
On appeal, complainant contends that he had participated in the EEO
process, prior to the instant complaint. Specifically, complainant
contends that on September 1, 2002, [he] testified as a witness at an EEO
deposition for [a named agency employee]. Complainant further asserts
that this information was documented and provided to the EEO Counselor.
In response, the agency reiterates that complainant's complaint does
not establish prior EEO activity. The agency states that complainant's
assertion that he served as a witness at an EEO deposition, on September
1, 2002, occurred nine months after complainant's transfer.<1>
In addition, the agency states, for the first time on appeal, that
complainant's initial EEO contact was untimely. Specifically, the agency
asserts that complainant's initial EEO Counselor contact occurred more
than sixteen months after complainant's transfer.
In response to the agency's arguments on appeal, complainant states
in a letter to the Commission, dated October 3, 2003, that the agency
has misstated the matters raised in the instant complaint. Complainant
states that my EEO complaint is not based on my transfer or the grievance
filed because of my transfer. My complaint is based on the retaliatory
actions taken against me from on or about February 2003 to April 2003
as described in the [attachment to my formal EEO complaint].
In regard to complainant's prior EEO activity, the record contains a
chronology provided to the EEO Counselor by complainant during the
pre-complaint process, supporting complainant's assertion that he
participated as a witness in an EEO deposition. In that chronology,
complainant stated that on September 1, 2002, he [t]estified under
oath at [a] deposition for [a named agency employee]. The Commission
determines that the agency improperly dismissed complainant's complaint
for failure to state a claim, on the grounds that though reprisal is
identified as the only basis raised, the record did not show that
complainant had previously engaged in prior EEO activity. Instead,
the Commission determines that the record supports a finding that
complainant properly identified reprisal as a basis, based on prior
protected activity in which he engaged.
However, upon review of the record, the Commission further determines
that the matters set forth in the instant complaint lack precision
and clarity. The EEO Counselor Report and the final agency decision
define complainant's complaint as involving his transfer. Complainant
contends, on appeal however, that his transfer is not the subject of
his formal complaint. Moreover, in his formal complaint, in regard
to the question of what discriminatory actions have been taken against
him, complainant stated that I have detected and have evidence of a
pattern and practice of discriminatory and retaliatory activity against
me because of my participation in a protected activity. Attached to
his formal complaint, complainant lists a chronology of numerous events;
however, it is unclear what precise claims complainant is raising.
EEOC Management Directive 110, Chapter 2 (1999) specifies that at the
counseling stage, the EEO Counselor must be certain that the claims are
clearly defined and that the complainant agrees on how the agency defines
the issues that are to be the subject of the inquiry and subsequent
attempts at resolution. The Commission determines that it is unclear
from the record what claims complainant is raising in his complaint;
therefore, we can not determine whether complainant's complaint fails to
state a claim or if his claims were timely raised with an EEO Counselor.
Accordingly, the agency's decision dismissing complainant's complaint
is VACATED and the complaint is REMANDED for further processing in
accordance with the Order below.
ORDER
The agency is ORDERED to take the following actions:
1. Schedule in writing a meeting between complainant and an EEO Counselor
so an agreement can be reached on the definition of the complaint.
After the meeting(s), the counselor must issue a new EEO Counselor's
report concerning the meeting(s) and defining the complaint.
2. Whether or not an agreement is reached on a definition of the
issues in complainant's complaint, the agency shall issue either a
decision dismissing the complaint or a letter to complainant notifying
him that the agency is accepting the complaint (or a portion thereof)
for investigation. The decision or letter of acceptance must clearly
define all of the claims raised in the complaint.
The agency shall complete all of the above actions within 45 calendar
days of the date this decision becomes final. A copy of the agency's
acceptance letter or final decision must be sent to the Compliance
Officer as referenced herein.
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
1/15/2004
Date
1On appeal, the agency and complainant state that complainant's initial
transfer occurred on December 19, 2001.
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95 | https://www.eeoc.gov/sites/default/files/migrated_files/decisions/0120101623.txt | 0120101623.txt | TXT | text/plain | 13,938 | Jason L. Weaver, Complainant, v. Ray Mabus, Secretary, Department of the Navy, Agency. | February 8, 2010 | Appeal Number: 0120101623
Complaint Allegations:
In his complaint, Complainant alleged that he was subjected to discrimination on the basis of disability when: 1. On May 31, 2009, Complainant was informed that he would not be promoted to GS-5. 2. On July 28, 2009, Complainant was issued a Letter of Reprimand by his supervisor.1
Background:
In his complaint, Complainant alleged that he was subjected to discrimination on the basis of disability when:
1. On May 31, 2009, Complainant was informed that he would not be promoted to GS-5.
2. On July 28, 2009, Complainant was issued a Letter of Reprimand by his supervisor.1
The Agency dismissed the complaint pursuant to 29 C.F.R. § 1614.107(a)(2) for untimely EEO Counselor contact. Thereafter, Complainant filed the instant appeal.
CONTENTIONS ON APPEAL
On appeal, Complainant stated that he delayed contact because he was unaware of where to go to seek assistance. Complainant said that he went to the Agency's Patuxent River EEO Office on July 28, 2009 and that he spoke with an EEO Specialist and a Recruitment Program Administrator. Complainant claimed that he was informed by them that their office only supported the U.S. Naval Air Systems Command (NAVAIR) and not the U.S. Naval Supply Systems Command (NAVSUP). Complainant said that they informed him that he needed to go to his Union office for assistance. Complainant articulated that he went to the Agency's Patuxent River Union Office on July 28, 2009, July 29, 2009, July 30, 2009, and August 3, 2009, but there was no representative available for assistance. Complainant argued that his mother, who is a federal employee, advised him to file a claim of disability discrimination with the U.S. Department of Justice (DOJ), and he filed his claim on August 9, 2009. Complainant's Appeal at 1.
In response to claim 1, the Agency argued that Complainant attended EEO training on April 8, 2009, and Complainant had taken Prevention of Sexual Harassment training on January 6, 2009, March 3, 2009, and as recently as September 9, 2009. Agency Appeal File (AFF), at Tab F-7. Additionally, the Agency asserted that EEO postings, which provide the contact number to the Norfolk EEO Office, were displayed on each bulletin board at Complainant's work site. AFF, at Tab F-13. The Agency articulated that Complainant was aware of his rights, the timeline associated with filing an EEO complaint, and who to contact to file a complaint. Regarding claim 2, the Agency said that, although Complainant may have contacted the Patuxent River EEO Office and spoke with an EEO Specialist, an individual logically connected to the EEO process, Complainant did not exhibit an intent to pursue the EEO complaint process. Agency's Response at 2.
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. See 29 C.F.R. § 1614.105(a)(2).
The record discloses that, on August 9, 2009, Complainant filed a complaint with the DOJ. On October 22, 2009, Complainant received a Letter from DOJ stating that he must pursue his complaint via the Department of Navy Equal Employment Opportunity administrative process. On November 5, 2009, Complainant contacted an EEO Counselor to present the issues in his complaint. Between July 2009 and November 2009, Complainant contacted the Agency's Patuxent River EEO Office regarding the Reasonable Accommodation Program and job opportunities available to disabled veterans. AFF, Tab F-7)
Claim 2
We find that the Agency erred in dismissing Complainant's claim 2 for untimely EEO Counselor Contact. The record discloses that the alleged discriminatory event occurred when a Letter of Reprimand was issued to Complainant on July 28, 2009. Between July 2009 and November 2009, Complainant contacted the Agency's Patuxent River EEO Office for assistance. Complainant thereafter filed a disability discrimination complaint with the DOJ on August 9, 2009. Complainant received a response from DOJ on October 22, 2009, which informed him of his need to pursue his discrimination complaint through the Agency's EEO administrative process. Complainant then proceeded to contact the Agency's Norfolk EEO Office on November 5, 2009. The Agency acknowledged that Complainant contacted the Agency's Patuxent River EEO Office on July 28, 2009 and spoke with an EEO Specialist, an individual logically connected to the EEO process. We find that Complainant intended to pursue the EEO process when he made his contact with an EEO Specialist on July 28, 2009. Consequently, we find that Complainant timely initiated EEO Counselor contact regarding claim 2.
Claim 1
The Commission finds that Complainant should have reasonably suspected discrimination by May 31, 2009, the date that Complainant was informed that he would not be promoted to GS-5.
As discussed in claim 2, we find that Complainant's initial EEO Counselor date is July 28, 2009, which was beyond the 45-day time limit for claim 1. On appeal, Complainant argues that he was not aware of the regulatory 45-day limitation period. The record shows that Complainant had constructive notice of the time limit and the telephone number for the Norfolk EEO Office for contacting an EEO Counselor. On appeal, Complainant has presented no persuasive arguments or evidence warranting an extension of the time limit for initiating EEO Counselor contact regarding claim 1. | Jason L. Weaver,
Complainant,
v.
Ray Mabus,
Secretary,
Department of the Navy,
Agency.
Appeal No. 0120101623
Agency No. 100018900231
DECISION
Complainant filed a timely appeal with this Commission from the Agency's decision dated February 8, 2010, dismissing his complaint of unlawful employment discrimination. For the reasons set forth, we AFFIRM the Agency's decision, dismissing claim 1, and we REVERSE and REMAND the Agency's decision dismissing claim 2.
BACKGROUND
In his complaint, Complainant alleged that he was subjected to discrimination on the basis of disability when:
1. On May 31, 2009, Complainant was informed that he would not be promoted to GS-5.
2. On July 28, 2009, Complainant was issued a Letter of Reprimand by his supervisor.1
The Agency dismissed the complaint pursuant to 29 C.F.R. § 1614.107(a)(2) for untimely EEO Counselor contact. Thereafter, Complainant filed the instant appeal.
CONTENTIONS ON APPEAL
On appeal, Complainant stated that he delayed contact because he was unaware of where to go to seek assistance. Complainant said that he went to the Agency's Patuxent River EEO Office on July 28, 2009 and that he spoke with an EEO Specialist and a Recruitment Program Administrator. Complainant claimed that he was informed by them that their office only supported the U.S. Naval Air Systems Command (NAVAIR) and not the U.S. Naval Supply Systems Command (NAVSUP). Complainant said that they informed him that he needed to go to his Union office for assistance. Complainant articulated that he went to the Agency's Patuxent River Union Office on July 28, 2009, July 29, 2009, July 30, 2009, and August 3, 2009, but there was no representative available for assistance. Complainant argued that his mother, who is a federal employee, advised him to file a claim of disability discrimination with the U.S. Department of Justice (DOJ), and he filed his claim on August 9, 2009. Complainant's Appeal at 1.
In response to claim 1, the Agency argued that Complainant attended EEO training on April 8, 2009, and Complainant had taken Prevention of Sexual Harassment training on January 6, 2009, March 3, 2009, and as recently as September 9, 2009. Agency Appeal File (AFF), at Tab F-7. Additionally, the Agency asserted that EEO postings, which provide the contact number to the Norfolk EEO Office, were displayed on each bulletin board at Complainant's work site. AFF, at Tab F-13. The Agency articulated that Complainant was aware of his rights, the timeline associated with filing an EEO complaint, and who to contact to file a complaint. Regarding claim 2, the Agency said that, although Complainant may have contacted the Patuxent River EEO Office and spoke with an EEO Specialist, an individual logically connected to the EEO process, Complainant did not exhibit an intent to pursue the EEO complaint process. Agency's Response at 2.
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. See 29 C.F.R. § 1614.105(a)(2).
The record discloses that, on August 9, 2009, Complainant filed a complaint with the DOJ. On October 22, 2009, Complainant received a Letter from DOJ stating that he must pursue his complaint via the Department of Navy Equal Employment Opportunity administrative process. On November 5, 2009, Complainant contacted an EEO Counselor to present the issues in his complaint. Between July 2009 and November 2009, Complainant contacted the Agency's Patuxent River EEO Office regarding the Reasonable Accommodation Program and job opportunities available to disabled veterans. AFF, Tab F-7)
Claim 2
We find that the Agency erred in dismissing Complainant's claim 2 for untimely EEO Counselor Contact. The record discloses that the alleged discriminatory event occurred when a Letter of Reprimand was issued to Complainant on July 28, 2009. Between July 2009 and November 2009, Complainant contacted the Agency's Patuxent River EEO Office for assistance. Complainant thereafter filed a disability discrimination complaint with the DOJ on August 9, 2009. Complainant received a response from DOJ on October 22, 2009, which informed him of his need to pursue his discrimination complaint through the Agency's EEO administrative process. Complainant then proceeded to contact the Agency's Norfolk EEO Office on November 5, 2009. The Agency acknowledged that Complainant contacted the Agency's Patuxent River EEO Office on July 28, 2009 and spoke with an EEO Specialist, an individual logically connected to the EEO process. We find that Complainant intended to pursue the EEO process when he made his contact with an EEO Specialist on July 28, 2009. Consequently, we find that Complainant timely initiated EEO Counselor contact regarding claim 2.
Claim 1
The Commission finds that Complainant should have reasonably suspected discrimination by May 31, 2009, the date that Complainant was informed that he would not be promoted to GS-5.
As discussed in claim 2, we find that Complainant's initial EEO Counselor date is July 28, 2009, which was beyond the 45-day time limit for claim 1. On appeal, Complainant argues that he was not aware of the regulatory 45-day limitation period. The record shows that Complainant had constructive notice of the time limit and the telephone number for the Norfolk EEO Office for contacting an EEO Counselor. On appeal, Complainant has presented no persuasive arguments or evidence warranting an extension of the time limit for initiating EEO Counselor contact regarding claim 1.
CONCLUSION
The Agency's final decision dismissing claim 1 is AFFIRMED. The Agency's decision dismissing claim 2 is REVERSED and claim 2 is REMANDED to the Agency for further processing as directed 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 resolved prior to that time. If the Complainant requests a final decision without a hearing, the Agency shall issue a final decision within sixty (60) days of receipt of Complainant's request.
A copy of the Agency's letter of acknowledgment to Complainant and a copy of the notice that transmits the investigative file and notice of rights must be sent to the Compliance Officer as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0610)
Compliance with the Commission's corrective action is mandatory. The Agency shall submit its compliance report within thirty (30) calendar days of the completion of all ordered corrective action. The report shall be submitted to the Compliance Officer, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC 20013. The Agency's report must contain supporting documentation, and the Agency must send a copy of all submissions to the Complainant. If the Agency does not comply with the Commission's order, the Complainant may petition the Commission for enforcement of the order. 29 C.F.R. § 1614.503(a). The Complainant also has the right to file a civil action to enforce compliance with the Commission's order prior to or following an administrative petition for enforcement. See 29 C.F.R. §§ 1614.407, 1614.408, and 29 C.F.R. § 1614.503(g). Alternatively, the Complainant has the right to file a civil action on the underlying complaint in accordance with the paragraph below entitled "Right to File A Civil Action." 29 C.F.R. §§ 1614.407 and 1614.408. A civil action for enforcement or a civil action on the underlying complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c) (1994 & Supp. IV 1999). If the Complainant files a civil action, the administrative processing of the complaint, including any petition for enforcement, will be terminated. See 29 C.F.R. § 1614.409.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
The Commission may, in its discretion, reconsider the decision in this case if the Complainant or the Agency submits a written request containing arguments or evidence which tend to establish that:
1. The appellate decision involved a clearly erroneous interpretation of material fact or law; or
2. The appellate decision will have a substantial impact on the policies, practices, or operations of the Agency.
Requests to reconsider, with supporting statement or brief, must be filed with the Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision or within twenty (20) calendar days of receipt of another party's timely request for reconsideration. See 29 C.F.R. § 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at 9-18 (November 9, 1999). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC 20013. In the absence of a legible postmark, the request to reconsider shall be deemed timely filed if it is received by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. The request or opposition must also include proof of service on the other party.
Failure to file within the time period will result in dismissal of your request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted with your request for reconsideration. The Commission will consider requests for reconsideration filed after the deadline only in very limited circumstances. See 29 C.F.R. § 1614.604(c).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (T0610)
This decision affirms the Agency's final decision/action in part, but it also requires the Agency to continue its administrative processing of a portion of your complaint. You have the right to file a civil action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision on both that portion of your complaint which the Commission has affirmed and that portion of the complaint which has been remanded for continued administrative processing. In the alternative, you may file a civil action after one hundred and eighty (180) calendar days of the date you filed your complaint with the Agency, or your appeal with the Commission, until such time as the Agency issues its final decision on your complaint. If you file a civil action, you must name as the defendant in the complaint the person who is the official Agency head or department head, identifying that person by his or her full name and official title. Failure to do so may result in the dismissal of your case in court. "Agency" or "department" means the national organization, and not the local office, facility or department in which you work. If you file a request to reconsider and also file a civil action, filing a civil action will terminate the administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z0610)
If you decide to file a civil action, and if you do not have or cannot afford the services of an attorney, you may request from the Court that the Court appoint an attorney to represent you and that the Court also permit you to file the action without payment of fees, costs, or other security. See Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq.; the Rehabilitation Act of 1973, as amended, 29 U.S.C. §§ 791, 794(c). The grant or denial of the request is within the sole discretion of the Court. Filing a request for an attorney with the Court does not extend your time in which to file a civil action. Both the request and the civil action must be filed within the time limits as stated in the paragraph above ("Right to File A Civil Action").
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
August 23, 2010
__________________
Date
1 We have reordered and renumbered the allegations.
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96 | https://www.eeoc.gov/sites/default/files/migrated_files/decisions/01a61930_r.txt | 01a61930_r.txt | TXT | text/plain | 14,052 | 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
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97 | https://www.eeoc.gov/sites/default/files/migrated_files/decisions/0520110023.txt | 0520110023.txt | TXT | text/plain | 14,609 | Carroll J. Milton, Complainant, v. Timothy F. Geithner, Secretary, Department of the Treasury (Bureau of Engraving and Printing), Agency. | August 24, 2010 | Appeal Number: 0120102101
Background:
In the underlying case, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of race (African-American), sex (male), and reprisal for prior protected EEO activity when, beginning on April 3, 2008, the Agency failed to conduct a desk audit to determine whether his job classification was consistent with his work assignments.1
The appellate decision affirmed the Agency's final decision, which found that Complainant failed to prove that he was subjected to discrimination as alleged. Initially, the appellate decision declined to address Complainant's contention that Agency legal representatives improperly intruded on the EEO investigative process, finding that he was alleging dissatisfaction with the processing of his pending complaint. Next, the appellate decision declined to consider management's deposition testimony, finding that it was new evidence submitted on appeal. Further, the appellate decision found that the Agency articulated legitimate, nondiscriminatory reasons for its actions; namely, the delay in conducting Complainant's classification action was the result of a heavy workload and staff shortages in the Human Resources (HR) department. Finally, the appellate decision found that Complainant failed to show that the Agency's articulated reasons were a pretext for race, sex, or reprisal discrimination.
ARGUMENTS ON RECONSIDERATION
In his request for reconsideration, Complainant essentially argued that the appellate decision clearly erred in not considering management's deposition testimony because: (1) the depositions, submitted as part of his November 13, 2009 Amended Pre-Hearing Conference Report, were already part of the record; and (2) the excluded deposition testimony establishes pretext by calling into question management's credibility and the legitimacy of its articulated reasons. Moreover, Complainant asserted that the HR department completed the classification actions of two Caucasian employees (C1 - female, C2 - male)2 during the period when his request was pending.
Finally, Complainant argued that the appellate decision misinterpreted the issue of improper Agency intrusion into EEO investigations. Complainant explained that he had "[n]o issue with the manner in which his complaint was processed." Complainant clarified that he was concerned with senior management's policy requiring all supervisors and managers to have Agency legal representatives review and correct their EEO affidavits before submitting them to the EEO Investigator.
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 filed an EEO complaint alleging that the Agency discriminated against him on the bases of race (African-American), sex (male), and reprisal for prior protected EEO activity when, beginning on April 3, 2008, the Agency failed to conduct a desk audit to determine whether his job classification was consistent with his work assignments.1
The appellate decision affirmed the Agency's final decision, which found that Complainant failed to prove that he was subjected to discrimination as alleged. Initially, the appellate decision declined to address Complainant's contention that Agency legal representatives improperly intruded on the EEO investigative process, finding that he was alleging dissatisfaction with the processing of his pending complaint. Next, the appellate decision declined to consider management's deposition testimony, finding that it was new evidence submitted on appeal. Further, the appellate decision found that the Agency articulated legitimate, nondiscriminatory reasons for its actions; namely, the delay in conducting Complainant's classification action was the result of a heavy workload and staff shortages in the Human Resources (HR) department. Finally, the appellate decision found that Complainant failed to show that the Agency's articulated reasons were a pretext for race, sex, or reprisal discrimination.
ARGUMENTS ON RECONSIDERATION
In his request for reconsideration, Complainant essentially argued that the appellate decision clearly erred in not considering management's deposition testimony because: (1) the depositions, submitted as part of his November 13, 2009 Amended Pre-Hearing Conference Report, were already part of the record; and (2) the excluded deposition testimony establishes pretext by calling into question management's credibility and the legitimacy of its articulated reasons. Moreover, Complainant asserted that the HR department completed the classification actions of two Caucasian employees (C1 - female, C2 - male)2 during the period when his request was pending.
Finally, Complainant argued that the appellate decision misinterpreted the issue of improper Agency intrusion into EEO investigations. Complainant explained that he had "[n]o issue with the manner in which his complaint was processed." Complainant clarified that he was concerned with senior management's policy requiring all supervisors and managers to have Agency legal representatives review and correct their EEO affidavits before submitting them to the EEO Investigator.
ANALYSIS AND FINDINGS
Upon review, we find that Complainant's request fails to demonstrate 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.
As an initial matter, we find that the appellate decision erred in not considering the deposition testimony. Contrary to the appellate decision's determination that the deposition testimony was new evidence submitted by Complainant, we find that the deposition testimony was already part of the record. Documentary evidence reflects that Complainant had previously submitted the deposition transcripts to the AJ as part of his November 13, 2009 Amended Pre-Hearing Conference Report.
Although the appellate decision erred in excluding the deposition testimony, we find that reconsideration is unwarranted because the appellate decision did not clearly err in its ultimate finding of no discrimination. In his appeal brief, Complainant argued that inconsistencies between the deposition testimony and the report of investigation show that the Agency's articulated reasons were pretextual. Upon review, we reject Complainant's argument because either: (a) the alleged inconsistencies are not really inconsistencies; or (b) the cited inconsistencies are not material in terms of establishing pretext.
First, Complainant argued that the HR Manger (HRM) was not credible because she provided contradictory testimony about her knowledge of his prior EEO activity. In her May 11, 2009 affidavit, HRM averred that she was not aware of any prior EEO activity by Complainant. In her November 2, 2009 deposition, HRM testified that she did not know about Complainant's prior EEO activity when she was first assigned to his classification action, but found out about it at some point afterwards. We find that this testimony is not necessarily inconsistent. In so finding, we note that, because HRM did not specify when she learned of Complainant's EEO activity in her November 2, 2009 deposition, it is possible that she found out about it between May and November 2009.
Second, Complainant argued that the Human Resources Specialist's (HRS) deposition testimony contradicted HRM's affidavit testimony regarding who in the HR department could complete his classification action. In her deposition, HRS testified that any of the HR Specialists were qualified to do classification determinations. In her affidavit, HRM averred that she was the only other HR Specialist (other than HRS) with classification experience at the facility. Again we find that Complainant has not shown that this testimony is inconsistent. In so finding, we note that HRS testified about who in the HR department was qualified to do classification actions whereas HRM testified about who in the HR department had experience doing classification actions.
Third, Complainant argued that HRM's deposition testimony showed that the HR department was not understaffed in April 2008 when he initially requested a desk audit. In her deposition, HRM testified that the HR department had a full or sufficient staff until October 2008. We find that this testimony is not material in establishing pretext. In so finding, we note that the Agency articulated two reasons for not completing Complainant's classification action until May 2010: a heavy workload and staff shortages. Even if the HR department was fully staffed from April 2008 to October 2008, testimonial evidence reflects that the HR department was short staffed after October 2008. Moreover, Complainant has not refuted the Agency's explanation about the HR department's heavy workload.
Fourth, Complainant argued that documentary evidence contradicted C2's deposition testimony that Complainant's duties did not increase. We find that this testimony is not material in establishing pretext. In so finding, we note that HRM was responsible for completing Complainant's classification action. Complainant has not shown how questions surrounding C2's credibility affect HRM's credibility. Moreover, the record contains no evidence that C2 improperly influenced HRM with respect to Complainant's classification action.
Finally, Complainant argued that the Agency's articulated reasons were pretextual because HRM's deposition testimony showed that she completed classification actions for C1 and C2 while Complainant's classification was pending. In her deposition, HRM testified that she completed the other classification actions sooner because conducting a review of Complainant's engineer position was much more complex than conducting a review of C1 and C2's supervisory positions. We find that this testimony is not material in establishing pretext. In so finding, we note that HRM's testimony shows that she considered the complexity of the classification actions, not race, sex, or prior EEO activity, in determining which actions to complete first.
Agency's Role in EEO Investigations
Complainant asserted that the Agency's legal representatives improperly intruded on EEO investigations by reviewing and correcting management's EEO affidavits before submitting them to the EEO Investigator.
In support of his assertion, Complainant submitted a senior management official's March 23, 2007 affidavit from another case. The senior management official averred, in pertinent part, the following:
It is my policy that my managers obtain legal review of their affidavits in EEO investigations prior to submission to the investigator. Legal review of affidavits is a service provided by the Office of Chief Counsel and I expect my managers to take advantage of this service. My expectation is based on a couple of reasons. First, I take EEO complaints seriously and expect my managers to provide a full and complete accounting of facts and circumstances surrounding the allegations. Second, by its very nature, EEO investigations are part of a legal process, which may potentially subject this Agency to liability. Our attorneys are in the best position to ensure that the manager understands the allegations and has every opportunity to provide his or her side of the story.
Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, Chapter 1, § III (November 9, 1999) states, in pertinent part, the following:
Heads of agencies must not permit intrusion on the investigations and deliberations of EEO complaints by agency representatives and offices responsible for defending the agency against EEO complaint. Maintaining distance between the fact-finding and defensive functions of the agency enhances the credibility of the EEO office and the integrity of the EEO complaints process. Legal sufficiency reviews of EEO matters must be handled by a functional unit that is separate and apart from the unit which handles agency representation in EEO complaints. The Commission requires this separation because impartiality and the appearance of impartiality is important to the credibility of the equal employment program.
We remind the Agency that it must avoid even the appearance that it is interfering with the EEO process. Participants in EEO investigations should be assured that they can give candid, truthful responses to investigators. Further, we note that the extent to which respondents have been prompted or instructed to give certain testimony by employer representatives can go to the heart of the witness's credibility. See United States v. Arias-Santos, 39 F.3d 1070, 1074 (10th Cir. 1994) (questions directed at revealing testimony of witness was coached clearly relevant to jury's assessment of reliability of that witness). Consequently, we strongly advise the Agency to henceforth avoid actions that create the appearance that it is influencing employees' responses to EEO investigations.3 | Carroll J. Milton,
Complainant,
v.
Timothy F. Geithner,
Secretary,
Department of the Treasury
(Bureau of Engraving and Printing),
Agency.
Request No. 0520110023
Appeal No. 0120102101
Agency No. TD-09-0233-F
DENIAL
Complainant timely requested reconsideration of the decision in Carroll J. Milton v. Department of the Treasury, EEOC Appeal No. 0120102101 (August 24, 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 filed an EEO complaint alleging that the Agency discriminated against him on the bases of race (African-American), sex (male), and reprisal for prior protected EEO activity when, beginning on April 3, 2008, the Agency failed to conduct a desk audit to determine whether his job classification was consistent with his work assignments.1
The appellate decision affirmed the Agency's final decision, which found that Complainant failed to prove that he was subjected to discrimination as alleged. Initially, the appellate decision declined to address Complainant's contention that Agency legal representatives improperly intruded on the EEO investigative process, finding that he was alleging dissatisfaction with the processing of his pending complaint. Next, the appellate decision declined to consider management's deposition testimony, finding that it was new evidence submitted on appeal. Further, the appellate decision found that the Agency articulated legitimate, nondiscriminatory reasons for its actions; namely, the delay in conducting Complainant's classification action was the result of a heavy workload and staff shortages in the Human Resources (HR) department. Finally, the appellate decision found that Complainant failed to show that the Agency's articulated reasons were a pretext for race, sex, or reprisal discrimination.
ARGUMENTS ON RECONSIDERATION
In his request for reconsideration, Complainant essentially argued that the appellate decision clearly erred in not considering management's deposition testimony because: (1) the depositions, submitted as part of his November 13, 2009 Amended Pre-Hearing Conference Report, were already part of the record; and (2) the excluded deposition testimony establishes pretext by calling into question management's credibility and the legitimacy of its articulated reasons. Moreover, Complainant asserted that the HR department completed the classification actions of two Caucasian employees (C1 - female, C2 - male)2 during the period when his request was pending.
Finally, Complainant argued that the appellate decision misinterpreted the issue of improper Agency intrusion into EEO investigations. Complainant explained that he had "[n]o issue with the manner in which his complaint was processed." Complainant clarified that he was concerned with senior management's policy requiring all supervisors and managers to have Agency legal representatives review and correct their EEO affidavits before submitting them to the EEO Investigator.
ANALYSIS AND FINDINGS
Upon review, we find that Complainant's request fails to demonstrate 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.
As an initial matter, we find that the appellate decision erred in not considering the deposition testimony. Contrary to the appellate decision's determination that the deposition testimony was new evidence submitted by Complainant, we find that the deposition testimony was already part of the record. Documentary evidence reflects that Complainant had previously submitted the deposition transcripts to the AJ as part of his November 13, 2009 Amended Pre-Hearing Conference Report.
Although the appellate decision erred in excluding the deposition testimony, we find that reconsideration is unwarranted because the appellate decision did not clearly err in its ultimate finding of no discrimination. In his appeal brief, Complainant argued that inconsistencies between the deposition testimony and the report of investigation show that the Agency's articulated reasons were pretextual. Upon review, we reject Complainant's argument because either: (a) the alleged inconsistencies are not really inconsistencies; or (b) the cited inconsistencies are not material in terms of establishing pretext.
First, Complainant argued that the HR Manger (HRM) was not credible because she provided contradictory testimony about her knowledge of his prior EEO activity. In her May 11, 2009 affidavit, HRM averred that she was not aware of any prior EEO activity by Complainant. In her November 2, 2009 deposition, HRM testified that she did not know about Complainant's prior EEO activity when she was first assigned to his classification action, but found out about it at some point afterwards. We find that this testimony is not necessarily inconsistent. In so finding, we note that, because HRM did not specify when she learned of Complainant's EEO activity in her November 2, 2009 deposition, it is possible that she found out about it between May and November 2009.
Second, Complainant argued that the Human Resources Specialist's (HRS) deposition testimony contradicted HRM's affidavit testimony regarding who in the HR department could complete his classification action. In her deposition, HRS testified that any of the HR Specialists were qualified to do classification determinations. In her affidavit, HRM averred that she was the only other HR Specialist (other than HRS) with classification experience at the facility. Again we find that Complainant has not shown that this testimony is inconsistent. In so finding, we note that HRS testified about who in the HR department was qualified to do classification actions whereas HRM testified about who in the HR department had experience doing classification actions.
Third, Complainant argued that HRM's deposition testimony showed that the HR department was not understaffed in April 2008 when he initially requested a desk audit. In her deposition, HRM testified that the HR department had a full or sufficient staff until October 2008. We find that this testimony is not material in establishing pretext. In so finding, we note that the Agency articulated two reasons for not completing Complainant's classification action until May 2010: a heavy workload and staff shortages. Even if the HR department was fully staffed from April 2008 to October 2008, testimonial evidence reflects that the HR department was short staffed after October 2008. Moreover, Complainant has not refuted the Agency's explanation about the HR department's heavy workload.
Fourth, Complainant argued that documentary evidence contradicted C2's deposition testimony that Complainant's duties did not increase. We find that this testimony is not material in establishing pretext. In so finding, we note that HRM was responsible for completing Complainant's classification action. Complainant has not shown how questions surrounding C2's credibility affect HRM's credibility. Moreover, the record contains no evidence that C2 improperly influenced HRM with respect to Complainant's classification action.
Finally, Complainant argued that the Agency's articulated reasons were pretextual because HRM's deposition testimony showed that she completed classification actions for C1 and C2 while Complainant's classification was pending. In her deposition, HRM testified that she completed the other classification actions sooner because conducting a review of Complainant's engineer position was much more complex than conducting a review of C1 and C2's supervisory positions. We find that this testimony is not material in establishing pretext. In so finding, we note that HRM's testimony shows that she considered the complexity of the classification actions, not race, sex, or prior EEO activity, in determining which actions to complete first.
Agency's Role in EEO Investigations
Complainant asserted that the Agency's legal representatives improperly intruded on EEO investigations by reviewing and correcting management's EEO affidavits before submitting them to the EEO Investigator.
In support of his assertion, Complainant submitted a senior management official's March 23, 2007 affidavit from another case. The senior management official averred, in pertinent part, the following:
It is my policy that my managers obtain legal review of their affidavits in EEO investigations prior to submission to the investigator. Legal review of affidavits is a service provided by the Office of Chief Counsel and I expect my managers to take advantage of this service. My expectation is based on a couple of reasons. First, I take EEO complaints seriously and expect my managers to provide a full and complete accounting of facts and circumstances surrounding the allegations. Second, by its very nature, EEO investigations are part of a legal process, which may potentially subject this Agency to liability. Our attorneys are in the best position to ensure that the manager understands the allegations and has every opportunity to provide his or her side of the story.
Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, Chapter 1, § III (November 9, 1999) states, in pertinent part, the following:
Heads of agencies must not permit intrusion on the investigations and deliberations of EEO complaints by agency representatives and offices responsible for defending the agency against EEO complaint. Maintaining distance between the fact-finding and defensive functions of the agency enhances the credibility of the EEO office and the integrity of the EEO complaints process. Legal sufficiency reviews of EEO matters must be handled by a functional unit that is separate and apart from the unit which handles agency representation in EEO complaints. The Commission requires this separation because impartiality and the appearance of impartiality is important to the credibility of the equal employment program.
We remind the Agency that it must avoid even the appearance that it is interfering with the EEO process. Participants in EEO investigations should be assured that they can give candid, truthful responses to investigators. Further, we note that the extent to which respondents have been prompted or instructed to give certain testimony by employer representatives can go to the heart of the witness's credibility. See United States v. Arias-Santos, 39 F.3d 1070, 1074 (10th Cir. 1994) (questions directed at revealing testimony of witness was coached clearly relevant to jury's assessment of reliability of that witness). Consequently, we strongly advise the Agency to henceforth avoid actions that create the appearance that it is influencing employees' responses to EEO investigations.3
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. 0120102101 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
_6/29/12_________________
Date
1 The Agency completed Complainant's classification action on May 6, 2010.
2 C1 and C2 were both supervisors. C2 was Complainant's immediate supervisor.
3 Because Complainant provided no evidence that such a review took place in this case, we find no reason to sanction the Agency's actions. We note that the senior management official's affidavit is from 2007 and that the EEO investigation in Complainant's case occurred in 2009.
------------------------------------------------------------
------------------------------------------------------------
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98 | https://www.eeoc.gov/sites/default/files/migrated_files/decisions/01996785.txt | 01996785.txt | TXT | text/plain | 13,053 | Arla M. Gaines. v. Small Business Administration 01996785 March 4, 2002 . Arla M. Gaines, Complainant, v. Hector V. Barreto, Administrator, Small Business Administration, Agency. | March 4, 2002 | Appeal Number: 01996785
Legal Analysis:
the Commission),
acknowledged receipt of complainant's notice on September 14, 1999,
and docketed it as this appeal. Subsequently, both parties submitted
statements supporting their respective appeal positions (complainant
objecting to the outcome of the FAD, and the agency reiterating its
reasons for dismissing complainant's complaint). After reviewing these
appeal briefs and all the other evidence in the record, we have concluded
that the agency properly dismissed the complaint at issue.
As the agency points out, the sixth EEO complaint filed by the complainant
dealt with whether the agency discriminated against complainant when
the Chief Counsel to the Disaster Assistance Program refused to excuse
[himself] from participation in her EEO cases. Agency's Appeal Brief
(Nov. 15, 1999), at 2. In her statement on appeal, complainant admits
that Issue #1 in the instant complaint addresses whether the agency
discriminated against her by appointing the Chief Disaster Counsel
(the Agency Attorney) as its representative for prior EEO complaints.
Complainant also admits that in her sixth EEO case, she alleged
discrimination and retaliation because [the Agency Attorney] would not
recuse himself from participation in my EEO cases. Complainant's Appeal
Brief (Sept. 8, 1999), at 4. She attempts to distinguish the instant
claim, however, by noting that at the time of her sixth EEO complaint,
the Agency Attorney had not been named the agency's representative for
her first two complaints (as he now has been). This is a much more
serious act of post-employment retaliation than simply allowing [him] to
participate' in my EEO cases, complainant reasons. Id. We disagree.
Complainant has not convinced us that there is any meaningful distinction
between attempting to ban someone from participating in an EEO complaint
and trying to prevent them from being the agency's representative during
the EEO process. To the contrary, one could argue that participation
in an EEO complaint is broad enough to encompass serving as an agency
representative, as well as any other type of involvement in the EEO
process. Thus, we find that Issue #1 in the instant complaint is
sufficiently similar to the claim raised in complainant's sixth EEO
complaint (and later dismissed by the agency for untimely EEO counselor
contact<1>), and that the agency did not err in dismissing it here.
See 29 C.F.R. § 1614.107(a)(1) (providing that an agency may dismiss
a complaint that states the same claim that is pending before or has
been decided by the agency . . . .).
Similarly, the agency notes that complainant's sixth EEO complaint also
dealt with whether the agency discriminated when the Agency Attorney
denied her FOIA request (and thus blocked access to statements given by
her former supervisor to the Office of Special Counsel). See Agency's
Appeal Brief (Nov. 15, 1999), at 2. Issue #2 in the instant complaint
alleges that discrimination occurred when the chief FOIA officer for the
agency (not the Agency Attorney) affirmed the Agency Attorney's denial
of her FOIA request. Complainant distinguishes this issue from the
one raised in her sixth EEO complaint by asserting that the chief FOIA
officer was never implicated in the earlier allegation contained in her
sixth EEO complaint. See Complainant's Appeal Brief (Sept. 8, 1999),
at 5. The agency argues that this is a distinction without a difference,
since the gist of complainant's objection was and still is the denial
of the FOIA request. See Agency's Appeal Brief (Nov. 15, 1999), at 3.
We concur with the agency once again, and thus believe that it did not err
in dismissing this Issue #2, either.<2> See 29 C.F.R. § 1614.107(a)(1)
(providing that an agency may dismiss a complaint that states the same
claim that is pending before or has been decided by the agency . . . .).
We further believe the agency properly dismissed Issue #3 and Issue
#4 but for a different reason than the one the agency articulated.
The agency argued that complainant had not stated a claim on these issues
because she had not been harmed by the Agency Attorney, who allegedly
filed a sanctions motion and made false statements in pleadings during
the adjudication of a different EEO complaint. See Agency's Appeal
Brief (Nov. 15, 1999), at 4. We need not address whether these issues
stated a cognizable claim because we believe these issues should have
been rejected instead because they comprise a spin-off complaint.
Cf. Scott v. Department of Defense (Defense Logistics Agency), EEOC Appeal
No. 01993103 (Jan. 31, 2002). Agencies are allowed to dismiss complaints
that allege dissatisfaction with the processing of a previously filed
complaint. 29 C.F.R. § 1614.107(a)(8). That is precisely what happened
here. Complainant, in the instant complaint, objected to the agency's
actions (specifically, the Agency Attorney's filing a motion for sanctions
with, and making allegedly false statements to, an EEOC administrative
judge) during the adjudication of a previously filed EEO complaint.
In such a situation, complainant should have taken up her grievances
with the EEOC administrative judge hearing the matter(s). See, e.g., EEO
Management Directive for 29 C.F.R. Part 1614 (EEO MD-110) (rev. Nov. 9,
1999), at 5-25 (providing that [i]f a complainant is dissatisfied with
the processing of his/her pending complaint, whether or not it alleges
prohibited discrimination as a basis for dissatisfaction, s/he should be
referred to the agency official responsible for the quality of complaints
processing, and that in cases where the complainant's concerns have
not been resolved informally with the agency, the complainant may present
those concerns . . . to the EEOC Administrative Judge when the complaint
is under the jurisdiction of the Administrative Judge). Complainant was
not allowed to file a completely new and separate complaint over her
objections instead, as she attempted to do here.
Therefore, for the above-described reasons, we believe the agency did
not inappropriately dismiss the instant complaint.
Final Decision:
Accordingly, we conclude that its FAD should be affirmed. | Arla M. Gaines. v. Small Business Administration
01996785
March 4, 2002
.
Arla M. Gaines,
Complainant,
v.
Hector V. Barreto,
Administrator,
Small Business Administration,
Agency.
Appeal No. 01996785
Agency No. 07-99-034
DECISION
This case involves an appeal brought by Arla M. Gaines (complainant)
against the Small Business Administration (the agency). Complainant
worked for the agency until sometime in 1997. In a formal complaint filed
on or around July 20, 1999 the seventh such EEO complaint she had filed
complainant alleged that the agency discriminated against her when
(1) the agency appointed one of its attorneys (the Agency Attorney)
as its representative in two earlier EEO complaints complainant had
filed with the agency (even though the Agency Attorney was named as a
responsible management official in several of complainant's prior EEO
complaints); (2) the agency denied a Freedom of Information Act (FOIA)
request complainant submitted (asking for transcripts of testimony
her former supervisor had given to the Office of Special Counsel on an
issue apparently related to complainant's termination from the agency);
(3) the Agency Attorney filed a motion for sanctions against complainant
with an EEOC administrative judge (in connection with a different pending
EEO matter); and (4) the Agency Attorney knowingly made false statements
to an EEOC administrative judge (in a pleading filed in connection with
another pending EEO complaint). Complainant believed these actions
constituted post-employment discrimination on the bases of her gender
(female) and retaliation (for prior EEO complaints filed with the agency).
Complainant thus was claiming that the agency had violated Title VII
of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. §
2000e et seq. In a final decision issued on July 31, 1999 (FAD),
however, the agency dismissed each of these allegations for failing
to state a cognizable claim of employment discrimination. The agency
ruled that Issue #1 and Issue #2 (listed above) were identical to issues
raised in the sixth EEO complaint complainant had filed with the agency.
The agency also concluded that complainant had not been sufficiently
harmed by the incidents surrounding Issue #3 and/or Issue #4 (also
listed above), and thus had no standing to file a discrimination
complaint on these particular matters. Complainant disagreed, and
filed a timely notice challenging this FAD. We, the United States
Equal Employment Opportunity Commission (EEOC or the Commission),
acknowledged receipt of complainant's notice on September 14, 1999,
and docketed it as this appeal. Subsequently, both parties submitted
statements supporting their respective appeal positions (complainant
objecting to the outcome of the FAD, and the agency reiterating its
reasons for dismissing complainant's complaint). After reviewing these
appeal briefs and all the other evidence in the record, we have concluded
that the agency properly dismissed the complaint at issue.
As the agency points out, the sixth EEO complaint filed by the complainant
dealt with whether the agency discriminated against complainant when
the Chief Counsel to the Disaster Assistance Program refused to excuse
[himself] from participation in her EEO cases. Agency's Appeal Brief
(Nov. 15, 1999), at 2. In her statement on appeal, complainant admits
that Issue #1 in the instant complaint addresses whether the agency
discriminated against her by appointing the Chief Disaster Counsel
(the Agency Attorney) as its representative for prior EEO complaints.
Complainant also admits that in her sixth EEO case, she alleged
discrimination and retaliation because [the Agency Attorney] would not
recuse himself from participation in my EEO cases. Complainant's Appeal
Brief (Sept. 8, 1999), at 4. She attempts to distinguish the instant
claim, however, by noting that at the time of her sixth EEO complaint,
the Agency Attorney had not been named the agency's representative for
her first two complaints (as he now has been). This is a much more
serious act of post-employment retaliation than simply allowing [him] to
participate' in my EEO cases, complainant reasons. Id. We disagree.
Complainant has not convinced us that there is any meaningful distinction
between attempting to ban someone from participating in an EEO complaint
and trying to prevent them from being the agency's representative during
the EEO process. To the contrary, one could argue that participation
in an EEO complaint is broad enough to encompass serving as an agency
representative, as well as any other type of involvement in the EEO
process. Thus, we find that Issue #1 in the instant complaint is
sufficiently similar to the claim raised in complainant's sixth EEO
complaint (and later dismissed by the agency for untimely EEO counselor
contact<1>), and that the agency did not err in dismissing it here.
See 29 C.F.R. § 1614.107(a)(1) (providing that an agency may dismiss
a complaint that states the same claim that is pending before or has
been decided by the agency . . . .).
Similarly, the agency notes that complainant's sixth EEO complaint also
dealt with whether the agency discriminated when the Agency Attorney
denied her FOIA request (and thus blocked access to statements given by
her former supervisor to the Office of Special Counsel). See Agency's
Appeal Brief (Nov. 15, 1999), at 2. Issue #2 in the instant complaint
alleges that discrimination occurred when the chief FOIA officer for the
agency (not the Agency Attorney) affirmed the Agency Attorney's denial
of her FOIA request. Complainant distinguishes this issue from the
one raised in her sixth EEO complaint by asserting that the chief FOIA
officer was never implicated in the earlier allegation contained in her
sixth EEO complaint. See Complainant's Appeal Brief (Sept. 8, 1999),
at 5. The agency argues that this is a distinction without a difference,
since the gist of complainant's objection was and still is the denial
of the FOIA request. See Agency's Appeal Brief (Nov. 15, 1999), at 3.
We concur with the agency once again, and thus believe that it did not err
in dismissing this Issue #2, either.<2> See 29 C.F.R. § 1614.107(a)(1)
(providing that an agency may dismiss a complaint that states the same
claim that is pending before or has been decided by the agency . . . .).
We further believe the agency properly dismissed Issue #3 and Issue
#4 but for a different reason than the one the agency articulated.
The agency argued that complainant had not stated a claim on these issues
because she had not been harmed by the Agency Attorney, who allegedly
filed a sanctions motion and made false statements in pleadings during
the adjudication of a different EEO complaint. See Agency's Appeal
Brief (Nov. 15, 1999), at 4. We need not address whether these issues
stated a cognizable claim because we believe these issues should have
been rejected instead because they comprise a spin-off complaint.
Cf. Scott v. Department of Defense (Defense Logistics Agency), EEOC Appeal
No. 01993103 (Jan. 31, 2002). Agencies are allowed to dismiss complaints
that allege dissatisfaction with the processing of a previously filed
complaint. 29 C.F.R. § 1614.107(a)(8). That is precisely what happened
here. Complainant, in the instant complaint, objected to the agency's
actions (specifically, the Agency Attorney's filing a motion for sanctions
with, and making allegedly false statements to, an EEOC administrative
judge) during the adjudication of a previously filed EEO complaint.
In such a situation, complainant should have taken up her grievances
with the EEOC administrative judge hearing the matter(s). See, e.g., EEO
Management Directive for 29 C.F.R. Part 1614 (EEO MD-110) (rev. Nov. 9,
1999), at 5-25 (providing that [i]f a complainant is dissatisfied with
the processing of his/her pending complaint, whether or not it alleges
prohibited discrimination as a basis for dissatisfaction, s/he should be
referred to the agency official responsible for the quality of complaints
processing, and that in cases where the complainant's concerns have
not been resolved informally with the agency, the complainant may present
those concerns . . . to the EEOC Administrative Judge when the complaint
is under the jurisdiction of the Administrative Judge). Complainant was
not allowed to file a completely new and separate complaint over her
objections instead, as she attempted to do here.
Therefore, for the above-described reasons, we believe the agency did
not inappropriately dismiss the instant complaint. Accordingly, we
conclude that its FAD should be affirmed.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
The Commission may, in its discretion, reconsider the decision in this
case if 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 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; see also EEO MD-110, at 9-18. 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 the
request for reconsideration as untimely, unless extenuating circumstances
prevented the timely filing of the request. Any supporting documentation
must be submitted 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 (S0900)
Complainant has the right to file a civil action in an appropriate United
States District Court within ninety (90) calendar days from the date that
complainant receives this decision. If complainant files a civil action,
complainant 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 complainant's case in court. Agency or department
means the national organization, and not the local office, facility or
department in which complainant works. If complainant files a request
to reconsider and also files a civil action, filing a civil action will
terminate the administrative processing of the complaint.
RIGHT TO REQUEST COUNSEL (Z1199)
If complainant decides to file a civil action, and if complainant does
not have or cannot afford the services of an attorney, complainant may
request that the Court appoint an attorney to represent complainant and
that the Court permit complainant 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.; and 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 complainant's 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 entitled
Right to File A Civil Action.
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
March 4, 2002
__________________
Date
1We upheld the agency's dismissal of this claim in Gaines v. Small
Business Administration, EEOC Appeal No. 01995047 (Jan. 12, 2001).
2As the agency has explained, neither the Agency Attorney nor the
chief FOIA officer actually denied complainant's request in any event.
They informed complainant that the agency did not have jurisdiction
over the material requested, and referred the matter to the Office
of Special Counsel (the agency at which the documentation in question
had originated). See Agency's Appeal Brief (Nov. 15, 1999), at 3.
| [
"Scott v. Department of Defense (Defense Logistics Agency), EEOC Appeal No. 01993103 (Jan. 31, 2002)",
"Gaines v. Small Business Administration, EEOC Appeal No. 01995047 (Jan. 12, 2001)",
"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. § 2... | [
-0.02057822048664093,
0.03716045618057251,
-0.05796433240175247,
0.07692451030015945,
0.021743126213550568,
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0.08722538501024246,
0.033677056431770325,
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0.04212762787938118,
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-0.03368283435702324,
-0.01789... |
99 | https://www.eeoc.gov/sites/default/files/migrated_files/decisions/0120161787.txt | 0120161787.txt | TXT | text/plain | 17,138 | Fredda J.,1 Complainant, v. Loretta E. Lynch, Attorney General, Department of Justice (Federal Bureau of Prisons), Agency. | April 6, 2016 | Appeal Number: 0120161787
Background:
At the time of events giving rise to this complaint, Complainant worked as a EEO Counselor (GS-13) in the EEO Office at the Agency's Federal Detention Center in Houston, Texas.
On October 9, 2015, Complainant filed a formal complaint alleging that the Agency subjected her to a hostile work environment on the basis of reprisal (prior EEO activity) when:
1. On June 2, 2015, Complainant was conducting a phone interview with the Reasonable Accommodation Coordinator/Special Assistant to the General Counsel ("C1"), regarding a request for EEO Counseling where C1 was listed as the Responsible Management Official; and C1, using a combative tone, commented about Complainant's past role as an EEO Representative, stated that Complainant should have known she would not consent to an interview, and requested that Complainant submit all further inquiries in writing;
2. On June 23, 2015, the EEO Officer/Senior Dispute Resolution Specialist who was Complainant's second level supervisor ("S2"), required Complainant, in her role as an EEO Counselor, to go through her first level supervisor ("S1") via conference call in order to obtain documents from or to speak with C1;
3. On June 25, 2015, both S2 and Complainant's third level supervisor ("S3"), the EEO Director, once again required Complainant, in her role as an EEO Counselor, to go through S1 via conference call in order to obtain documents from or to speak with C1 regarding all future inquiries; and with regard to the assignment naming C1 as an RMO, from which this matter arose, S2 and S3 required Complainant to contact C1's coworker, the Deputy General Counsel ("DGC") to obtain the necessary information from C1; and
4. Because of the foregoing, S2 and S3 thereby failed to ensure that C1 cooperated with the EEO inquiry Complainant was conducting.
Before she became an EEO Counselor, Complainant worked for the Agency as an accountant and served as Regional and Local Fair Practice Coordinator for the local union. In this capacity, she repeatedly engaged in protected EEO activity by representing union member employees throughout EEO processes. On May 3, 2011 Complainant emailed C1, copying the Attorney General's Office among others. The email accused C1 of providing Agency management with erroneous information about reassignment as an option for a reasonable accommodation for an employee with a disability. Complainant's tone was adversarial, and she questioned C1's EEO knowledge and competency as Accommodation Coordinator.
Complainant and C1 did not communicate again until June 2, 2015, when Complainant, who had since become an EEO Counselor, was assigned a request for counseling that named C1 as a Responsible Management Official ("RMO"). Complainant alleges that when she called about the inquiry (which also involved reassignment as a reasonable accommodation); C1's tone was "combative." C1 questioned Complainant's neutrality, referencing her prior EEO activity as an EEO Representative, and then told Complainant to submit all of her questions in writing. Complainant responded that she knew C1 did not require any of the other EEO Counselors to submit their questions in writing and accused C1 of retaliating against her for her prior EEO activity. Complainant and C1 briefed their respective supervisors on the phone call, described in the record as "problematic" and "unpleasant;" and have not spoken to each other since.
Both S1 and S2 promptly responded to Complainant's emails alleging C1's retaliatory response to her inquiry, and S2 mentioned that other EEO Counselors had reported C1 was difficult to work with as well. At S2's direction, S1 attempted to speak with C1 to ensure she had all the facts about the encounter. However, DGC responded instead, instructing S1 that any future EEO information requests to C1 would go through him. Thus Complainant, S1, and DGC met via conference call so that Complainant could complete her inquiry. DGC promptly obtained and submitted C1's answers to S1, who forwarded them to Complainant, and she completed the assignment. As they were outside of C1's chain of command, S1, S2, and S3 met with C1's supervisor, GC, to strategize on preventing additional harassment allegations. They determined that going forward, S1 and the other supervisor for the EEO Counselors would be the points of contact for DGC regarding EEO inquiries for C1. S2 submitted a directive to all EEO Counselors that all information and document requests for C1 must be submitted via an EEO Supervisor. Complainant strongly objected, arguing that this solution still constituted retaliation because it created a barrier to her ability to do her job.
The Agency dismissed Complainant's complaint pursuant to 29 C.F.R. § 1614.107(a)(1) for failure to state a claim.
Legal Analysis:
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. Dep't of the Air Force, EEOC Request No. 05931049 (Apr. 21, 1994). If complainant cannot establish that s/he is aggrieved, the agency shall dismiss a complaint for failure to state a claim. 29 C.F.R. § 1614.107(a)(1).
The Commission has held that when a complaint does not challenge an agency action or inaction regarding a specific term, condition, or privilege of employment, the claim of harassment may survive if it alleges conduct that 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).
For claims of retaliation, the Commission has stated that adverse actions need not qualify as "ultimate employment actions" or materially affect the terms and conditions of employment. See Lindsey v. United States Postal Serv., EEOC Request No. 05980410 (Nov. 4, 1999). Instead, claims based on statutory retaliation clauses are reviewed "with a broad view of coverage. Under Commission policy, a complainant is protected from any retaliatory discrimination that is reasonably likely to deter... complainant or others from engaging in protected activity." See Maclin v. United States Postal Serv., EEOC Appeal No. 0120070788 (Mar. 29, 2007).
Claim 1
This Commission has consistently held that a stray remark or comment unaccompanied by concrete action is not a direct and personal deprivation sufficient to render an individual aggrieved. See Henry v. United States Postal Serv., EEOC Request No. 05940695 (Feb. 9, 1995). We agree with the Agency's finding that the alleged discriminatory act in Claim 1, C1's reference to Complainant's prior EEO activity and request that Complainant submit all questions in writing, amounted to an isolated stray remark. The Agency noted that the alleged harasser, C1, lacked supervisory authority over Complainant, and was not in a position to cause a concrete action impacting Complainant's employment. We find C1's alleged discriminatory action in Claim 1 insufficient to render Complainant aggrieved, and unlikely to deter others from engaging in protected activity. Likewise, C1's comments were not so severe or pervasive to alter the conditions of the complainant's employment.
On appeal, Complainant argues that Claim 1 should be considered together with Claims 2, 3, and 4 because S1 and S2 are liable for C1's alleged harassment in Claim 1 because as Complainant's supervisors, they did "nothing" after they learned about it. An employer is liable for hostile work environment harassment by employees who are not supervisors if the employer was "negligent in failing to prevent harassment from taking place." See Vance v. Ball State Univ., 133 S. Ct. 2434 (2013). Our guidance provides that remedial measures should be designed to stop the harassment, correct its effects on the employee, and ensure that the harassment does not recur. We find no indication in the record that S1 and S2 are liable for coworker harassment, as they acted promptly and effectively in accordance with our guidance. Complainant acknowledges that she has not communicated with her alleged harasser since informing S1 about the incident and S2 took remedial measures to ensure that the alleged discrimination is unlikely to recur. We emphasize to Complainant that these remedial measures need not be those that the employee requests or prefers, as long as they are effective.
Claims 2, 3, and 4
On appeal, Complainant also argues that she is an "aggrieved employee," because S2 restricted Complainant's ability to fulfill her duties as an EEO Counselor, namely "to conduct constructive interviews" as she investigates claims. However, Complainant does not dispute that she was able to complete her precomplaint inquiry of C1 with the information she obtained by coordinating with S1 and DGC. There is no evidence of undue delay, nor is there any indication that Complainant's record was negatively impacted. In addition, we find the alleged impact on Complainant's ability to perform her duties as an EEO Counselor to be minimal. C1 is the only individual this restriction applies to. Complainant states in her appeal that in her "five years of being an EEO Counselor she was never previously required to submit her questions in writing through her supervisor." Both Complainant and C1 state in the record that prior to the June 2015 phone call, the last time they communicated was in April 2011, before Complainant became an EEO Counselor. Even in the context of a reprisal claim, the requirement that Complainant coordinate with S1 when she needs to request information from an individual she communicates with an average of once every five years, fails to render Complainant an "aggrieved employee." We also find such a restriction, which has effectively prevented further alleged harassment by C1, unlikely to deter others from engaging in EEO Activity. Moreover, considering all four claims, keeping in mind our broad coverage of retaliation, the alleged actions of C1, S1, and S2 are not severe and pervasive enough to constitute harassment. In light of this finding, we decline to address Complainant's remaining arguments on this matter.
Dissatisfaction with Complaint Processing
When a complainant raises allegations of dissatisfaction regarding the processing of his or her pending complaint, the Agency official responsible for the quality of complaints processing must add a record of the complainant's concerns and any actions the Agency took to resolve the concerns, to the complaint file maintained on the underlying complaint. If no action was taken, the file must contain an explanation of the Agency's reason(s) for not taking any action. Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), Ch. 5, IV.A.12 and IV.D (Aug. 3, 2015)
Complainant, after pursuing this matter with the proper Agency official in accordance with our regulations, submits multiple allegations of dissatisfaction with the Agency's handling of her complaint. Specifically, she alleges that the Agency deliberately delayed processing her complaint, first by issuing her Report of Investigation two weeks after deadline even though the document date indicated it had been completed 40 days earlier, and by issuing its Final Decision two days after the maximum 180 day limitation period. With respect to the second delay, Complainant exercised her option to submit her complaint for a hearing by an Administrative Judge ("AJ"). The Agency contacted the AJ without copying Complainant, an improper ex parte communication, and informed the AJ that it had already drafted a Final Decision on the matter, causing Complainant's hearing request to be declined. Complainant further alleges that the signature on the Final Decision, indicated a conflict of interest.
After thorough review, we decline to exercise our discretion to sanction the Agency.
Final Decision:
Accordingly, the Agency's final decision dismissing Complainant's complaint is AFFIRMED. | Fredda J.,1
Complainant,
v.
Loretta E. Lynch,
Attorney General,
Department of Justice
(Federal Bureau of Prisons),
Agency.
Appeal No. 0120161787
Agency No. BOP201502020
DECISION
Complainant timely appealed to this Commission from the Agency's April 6, 2016, dismissal of 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 worked as a EEO Counselor (GS-13) in the EEO Office at the Agency's Federal Detention Center in Houston, Texas.
On October 9, 2015, Complainant filed a formal complaint alleging that the Agency subjected her to a hostile work environment on the basis of reprisal (prior EEO activity) when:
1. On June 2, 2015, Complainant was conducting a phone interview with the Reasonable Accommodation Coordinator/Special Assistant to the General Counsel ("C1"), regarding a request for EEO Counseling where C1 was listed as the Responsible Management Official; and C1, using a combative tone, commented about Complainant's past role as an EEO Representative, stated that Complainant should have known she would not consent to an interview, and requested that Complainant submit all further inquiries in writing;
2. On June 23, 2015, the EEO Officer/Senior Dispute Resolution Specialist who was Complainant's second level supervisor ("S2"), required Complainant, in her role as an EEO Counselor, to go through her first level supervisor ("S1") via conference call in order to obtain documents from or to speak with C1;
3. On June 25, 2015, both S2 and Complainant's third level supervisor ("S3"), the EEO Director, once again required Complainant, in her role as an EEO Counselor, to go through S1 via conference call in order to obtain documents from or to speak with C1 regarding all future inquiries; and with regard to the assignment naming C1 as an RMO, from which this matter arose, S2 and S3 required Complainant to contact C1's coworker, the Deputy General Counsel ("DGC") to obtain the necessary information from C1; and
4. Because of the foregoing, S2 and S3 thereby failed to ensure that C1 cooperated with the EEO inquiry Complainant was conducting.
Before she became an EEO Counselor, Complainant worked for the Agency as an accountant and served as Regional and Local Fair Practice Coordinator for the local union. In this capacity, she repeatedly engaged in protected EEO activity by representing union member employees throughout EEO processes. On May 3, 2011 Complainant emailed C1, copying the Attorney General's Office among others. The email accused C1 of providing Agency management with erroneous information about reassignment as an option for a reasonable accommodation for an employee with a disability. Complainant's tone was adversarial, and she questioned C1's EEO knowledge and competency as Accommodation Coordinator.
Complainant and C1 did not communicate again until June 2, 2015, when Complainant, who had since become an EEO Counselor, was assigned a request for counseling that named C1 as a Responsible Management Official ("RMO"). Complainant alleges that when she called about the inquiry (which also involved reassignment as a reasonable accommodation); C1's tone was "combative." C1 questioned Complainant's neutrality, referencing her prior EEO activity as an EEO Representative, and then told Complainant to submit all of her questions in writing. Complainant responded that she knew C1 did not require any of the other EEO Counselors to submit their questions in writing and accused C1 of retaliating against her for her prior EEO activity. Complainant and C1 briefed their respective supervisors on the phone call, described in the record as "problematic" and "unpleasant;" and have not spoken to each other since.
Both S1 and S2 promptly responded to Complainant's emails alleging C1's retaliatory response to her inquiry, and S2 mentioned that other EEO Counselors had reported C1 was difficult to work with as well. At S2's direction, S1 attempted to speak with C1 to ensure she had all the facts about the encounter. However, DGC responded instead, instructing S1 that any future EEO information requests to C1 would go through him. Thus Complainant, S1, and DGC met via conference call so that Complainant could complete her inquiry. DGC promptly obtained and submitted C1's answers to S1, who forwarded them to Complainant, and she completed the assignment. As they were outside of C1's chain of command, S1, S2, and S3 met with C1's supervisor, GC, to strategize on preventing additional harassment allegations. They determined that going forward, S1 and the other supervisor for the EEO Counselors would be the points of contact for DGC regarding EEO inquiries for C1. S2 submitted a directive to all EEO Counselors that all information and document requests for C1 must be submitted via an EEO Supervisor. Complainant strongly objected, arguing that this solution still constituted retaliation because it created a barrier to her ability to do her job.
The Agency dismissed Complainant's complaint pursuant to 29 C.F.R. § 1614.107(a)(1) for failure to state a claim.
ANALYSIS AND FINDINGS
Under the regulations set forth at 29 C.F.R. Part 1614, an agency shall accept a complaint from an aggrieved employee or applicant for employment who believes that he or she has been discriminated against by that agency because of race, color, religion, sex, national origin, age or disabling condition. 29 C.F.R. §§ 1614.103, .106(a). The Commission's federal 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. Dep't of the Air Force, EEOC Request No. 05931049 (Apr. 21, 1994). If complainant cannot establish that s/he is aggrieved, the agency shall dismiss a complaint for failure to state a claim. 29 C.F.R. § 1614.107(a)(1).
The Commission has held that when a complaint does not challenge an agency action or inaction regarding a specific term, condition, or privilege of employment, the claim of harassment may survive if it alleges conduct that 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).
For claims of retaliation, the Commission has stated that adverse actions need not qualify as "ultimate employment actions" or materially affect the terms and conditions of employment. See Lindsey v. United States Postal Serv., EEOC Request No. 05980410 (Nov. 4, 1999). Instead, claims based on statutory retaliation clauses are reviewed "with a broad view of coverage. Under Commission policy, a complainant is protected from any retaliatory discrimination that is reasonably likely to deter... complainant or others from engaging in protected activity." See Maclin v. United States Postal Serv., EEOC Appeal No. 0120070788 (Mar. 29, 2007).
Claim 1
This Commission has consistently held that a stray remark or comment unaccompanied by concrete action is not a direct and personal deprivation sufficient to render an individual aggrieved. See Henry v. United States Postal Serv., EEOC Request No. 05940695 (Feb. 9, 1995). We agree with the Agency's finding that the alleged discriminatory act in Claim 1, C1's reference to Complainant's prior EEO activity and request that Complainant submit all questions in writing, amounted to an isolated stray remark. The Agency noted that the alleged harasser, C1, lacked supervisory authority over Complainant, and was not in a position to cause a concrete action impacting Complainant's employment. We find C1's alleged discriminatory action in Claim 1 insufficient to render Complainant aggrieved, and unlikely to deter others from engaging in protected activity. Likewise, C1's comments were not so severe or pervasive to alter the conditions of the complainant's employment.
On appeal, Complainant argues that Claim 1 should be considered together with Claims 2, 3, and 4 because S1 and S2 are liable for C1's alleged harassment in Claim 1 because as Complainant's supervisors, they did "nothing" after they learned about it. An employer is liable for hostile work environment harassment by employees who are not supervisors if the employer was "negligent in failing to prevent harassment from taking place." See Vance v. Ball State Univ., 133 S. Ct. 2434 (2013). Our guidance provides that remedial measures should be designed to stop the harassment, correct its effects on the employee, and ensure that the harassment does not recur. We find no indication in the record that S1 and S2 are liable for coworker harassment, as they acted promptly and effectively in accordance with our guidance. Complainant acknowledges that she has not communicated with her alleged harasser since informing S1 about the incident and S2 took remedial measures to ensure that the alleged discrimination is unlikely to recur. We emphasize to Complainant that these remedial measures need not be those that the employee requests or prefers, as long as they are effective.
Claims 2, 3, and 4
On appeal, Complainant also argues that she is an "aggrieved employee," because S2 restricted Complainant's ability to fulfill her duties as an EEO Counselor, namely "to conduct constructive interviews" as she investigates claims. However, Complainant does not dispute that she was able to complete her precomplaint inquiry of C1 with the information she obtained by coordinating with S1 and DGC. There is no evidence of undue delay, nor is there any indication that Complainant's record was negatively impacted. In addition, we find the alleged impact on Complainant's ability to perform her duties as an EEO Counselor to be minimal. C1 is the only individual this restriction applies to. Complainant states in her appeal that in her "five years of being an EEO Counselor she was never previously required to submit her questions in writing through her supervisor." Both Complainant and C1 state in the record that prior to the June 2015 phone call, the last time they communicated was in April 2011, before Complainant became an EEO Counselor. Even in the context of a reprisal claim, the requirement that Complainant coordinate with S1 when she needs to request information from an individual she communicates with an average of once every five years, fails to render Complainant an "aggrieved employee." We also find such a restriction, which has effectively prevented further alleged harassment by C1, unlikely to deter others from engaging in EEO Activity. Moreover, considering all four claims, keeping in mind our broad coverage of retaliation, the alleged actions of C1, S1, and S2 are not severe and pervasive enough to constitute harassment. In light of this finding, we decline to address Complainant's remaining arguments on this matter.
Dissatisfaction with Complaint Processing
When a complainant raises allegations of dissatisfaction regarding the processing of his or her pending complaint, the Agency official responsible for the quality of complaints processing must add a record of the complainant's concerns and any actions the Agency took to resolve the concerns, to the complaint file maintained on the underlying complaint. If no action was taken, the file must contain an explanation of the Agency's reason(s) for not taking any action. Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), Ch. 5, IV.A.12 and IV.D (Aug. 3, 2015)
Complainant, after pursuing this matter with the proper Agency official in accordance with our regulations, submits multiple allegations of dissatisfaction with the Agency's handling of her complaint. Specifically, she alleges that the Agency deliberately delayed processing her complaint, first by issuing her Report of Investigation two weeks after deadline even though the document date indicated it had been completed 40 days earlier, and by issuing its Final Decision two days after the maximum 180 day limitation period. With respect to the second delay, Complainant exercised her option to submit her complaint for a hearing by an Administrative Judge ("AJ"). The Agency contacted the AJ without copying Complainant, an improper ex parte communication, and informed the AJ that it had already drafted a Final Decision on the matter, causing Complainant's hearing request to be declined. Complainant further alleges that the signature on the Final Decision, indicated a conflict of interest.
After thorough review, we decline to exercise our discretion to sanction the Agency.
CONCLUSION
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
August 25, 2016
__________________
Date
------------------------------------------------------------
------------------------------------------------------------
7 0120161787 | [
"Diaz v. Dep't of the Air Force, EEOC Request No. 05931049 (Apr. 21, 1994)",
"Lindsey v. United States Postal Serv., EEOC Request No. 05980410 (Nov. 4, 1999)",
"Maclin v. United States Postal Serv., EEOC Appeal No. 0120070788 (Mar. 29, 2007)",
"Henry v. United States Postal Serv., EEOC Request No. 05940695 (F... | [
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100 | https://www.eeoc.gov/sites/default/files/migrated_files/decisions/0520130543.txt | 0520130543.txt | TXT | text/plain | 6,299 | April 23, 2013 | Appeal Number: 0120123097
Legal Analysis:
EEOC regulations provide that the Commission may, in its discretion, grant a request to reconsider any previous Commission decision where the requesting party demonstrates that: (1) the appellate decision involved a clearly erroneous interpretation of material fact or law; or (2) the appellate decision will have a substantial impact on the policies, practices, or operations of the agency. See 29 C.F.R. § 1614.405(c).
Complainant filed a formal complaint in which she alleged that the Agency subjected her to discrimination on the basis of disability when, effective January 1, 2009, she was separated from her position under disability retirement without benefits; her lost vacation-leave payment had to be reissued on October 8, 2010; and, in August 2011, she had to force the Agency to pay her annuity.
The Agency dismissed Complainant's complaint, pursuant to 29 C.F.R. § 1614.107(a)(2), on the basis that it was initiated by untimely EEO Counselor contact. The Agency noted that the last event in the complaint occurred in August 2011, but Complainant did not initiate EEO Counselor contact until March 5, 2012, well beyond the 45-day time limit.
In her request for reconsideration, Complainant contends that she first contacted the "EEO department" on September 28, 2010, and submits e-mail correspondences that she contends support her assertion.
Upon review, we note that the e-mails submitted by Complainant with her request for reconsideration were not submitted on appeal, nor did Complainant raise appellate arguments about the timeliness of her initial EEO Counselor contact. Nevertheless, the e-mails reflect that the Agency apprised Complainant of the contact information for 11 EEO Counselors on September 21, 2010. The e-mails also reflect that, on September 28, 2010, an Agency official informed Complainant that he would ask a specific EEO Counselor to contact Complainant. Complainant maintains that she contacted an EEO Counselor on September 28, 2010, but no one responded to her until she tried again on March 5, 2012.
While the e-mails reflect that Complainant told an Agency official that she unsuccessfully tried to contact a specific EEO Counselor by telephone on September 28, 2010, they do not establish that Complainant tried to contact the EEO Counselor on that date or that the EEO Counselor received Complainant's message. Moreover, we note that the Agency gave Complainant a list of ten other EEO Counselors to contact, as well as notice of the 45-day time limit. Therefore, Complainant's inability to contact one EEO Counselor should not have impeded her from making timely contact with another EEO Counselor. There is no evidence that Complainant tried to contact any of the other EEO Counselors on the list or otherwise acted with due diligence with regard to this matter. Instead, Complainant waited almost a year and a half to further attempt EEO Counselor contact. As such, we do not find that our previous decision erred when it found that Complainant initiated untimely EEO Counselor contact.
We note 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,
v.
Chuck Hagel,
Secretary,
Department of Defense
(Army & Air Force Exchange Service),
Agency.
Request No. 0520130543
Appeal No. 0120123097
Agency No. AAFES-12056
DENIAL
Complainant timely requested reconsideration of the decision in EEOC Appeal No. 0120123097 (April 23, 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).
Complainant filed a formal complaint in which she alleged that the Agency subjected her to discrimination on the basis of disability when, effective January 1, 2009, she was separated from her position under disability retirement without benefits; her lost vacation-leave payment had to be reissued on October 8, 2010; and, in August 2011, she had to force the Agency to pay her annuity.
The Agency dismissed Complainant's complaint, pursuant to 29 C.F.R. § 1614.107(a)(2), on the basis that it was initiated by untimely EEO Counselor contact. The Agency noted that the last event in the complaint occurred in August 2011, but Complainant did not initiate EEO Counselor contact until March 5, 2012, well beyond the 45-day time limit.
In her request for reconsideration, Complainant contends that she first contacted the "EEO department" on September 28, 2010, and submits e-mail correspondences that she contends support her assertion.
Upon review, we note that the e-mails submitted by Complainant with her request for reconsideration were not submitted on appeal, nor did Complainant raise appellate arguments about the timeliness of her initial EEO Counselor contact. Nevertheless, the e-mails reflect that the Agency apprised Complainant of the contact information for 11 EEO Counselors on September 21, 2010. The e-mails also reflect that, on September 28, 2010, an Agency official informed Complainant that he would ask a specific EEO Counselor to contact Complainant. Complainant maintains that she contacted an EEO Counselor on September 28, 2010, but no one responded to her until she tried again on March 5, 2012.
While the e-mails reflect that Complainant told an Agency official that she unsuccessfully tried to contact a specific EEO Counselor by telephone on September 28, 2010, they do not establish that Complainant tried to contact the EEO Counselor on that date or that the EEO Counselor received Complainant's message. Moreover, we note that the Agency gave Complainant a list of ten other EEO Counselors to contact, as well as notice of the 45-day time limit. Therefore, Complainant's inability to contact one EEO Counselor should not have impeded her from making timely contact with another EEO Counselor. There is no evidence that Complainant tried to contact any of the other EEO Counselors on the list or otherwise acted with due diligence with regard to this matter. Instead, Complainant waited almost a year and a half to further attempt EEO Counselor contact. As such, we do not find that our previous decision erred when it found that Complainant initiated untimely EEO Counselor contact.
We note 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.
Accordingly, after reviewing the previous decision and the entire record, the Commission finds that the request fails to meet the criteria of 29 C.F.R. § 1614.405(c), and it is the decision of the Commission to DENY the request. The decision in EEOC Appeal No. 0120123097 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
May 9, 2014
Date
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101 | https://www.eeoc.gov/sites/default/files/migrated_files/decisions/01a31707_r.txt | 01a31707_r.txt | TXT | text/plain | 21,982 | James C. Moon v. Department of the Army 01A31707 June 3, 2004 . James C. Moon, Complainant, v. R.L. Brownlee, Acting Secretary, Department of the Army, Agency. | June 3, 2004 | Appeal Number: 01A31707
Case Facts:
Complainant filed a timely appeal with this Commission from the final
agency decision dated January 6, 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.
The record reflects that complainant contacted an agency EEO Counselor in
September 2001, regarding non-selections for various agency positions.
When an EEO Counselor informed complainant that more information was
necessary regarding the non-selections, complainant indicated that
he needed more time in which to decide whether or not he was going to
proceed with the EEO complaint process.
On August 5, 2002, complainant contacted the EEO office claiming that
he was discriminated against on the basis of religion. Informal efforts
to resolve complainant's concerns were unsuccessful.
On October 7, 2002, complainant filed a formal complaint, alleging that
he was the victim of unlawful employment discrimination on the bases of
religion and in reprisal for prior protected activity.<1>
On January 6, 2003, the agency issued a final decision. Therein, the
agency framed the claims as follows:
a. Agency officials of the 233d Base Support Battalion Darmstadt,
Germany either did not
select complainant or chose not to make a selection to various regular
and flex-time non- appropriated fund positions ending on 26 April
2002 for the following positions:
(1) Club Operations Assistant, NF-1101-01, Announcement
No. NAF-DA-OC-03, U.S. Army Europe, Darmstadt, Germany;
(2) Bar Assistant, NA-7405-01/02/03, Announcement No. NAF-DA-OC-01,
U.S. Army Europe, Darmstadt, Germany; and
(3) Club Operations Assistant, NF-1101-01/02, Announcement
No. NAF-DA-OC-05, U.S. Army Europe, Darmstadt, Germany.
b. Agency officials of the 104th Area Support Group, Hanau, Germany
either did not select complainant or chose not to make a selection to
various regular and flex-time non-appropriated fund positions ending on
26 April 2002, for the following positions:
(1) Administrative Assistant, NF-303-02, Announcement
No. NAF-HN-01-SP-043, Hanau, Germany;
(2) Recreation Aide, NF-0189-01, Announcement
No. NAF-GI-01-SP-CDR-004. Geissen, Germany;
(3) Theater Aide, NF-0189-01, Announcement No. NAF-GI-HN-01-SP-036,
Hanau, Germany;
(4) Desk Clerk, NF-1176-01, Announcement No. NAF-HN-01-OC-009, Hanau,
Germany;
(5) Club Aide, NF-1101-01, Announcement No. NAF-HN-01-OC-002, 414th
Base Support Battalion, Hanau, Germany; and
(6) Recreation Assistant, NF-0189-02, Announcement No. NAF-HN-01-SP-036,
Hanau, Germany.
c. Agency officials of the 415th Base Support Battalion Kaisersalutern,
Germany either did not select complainant or chose not to make a selection
to various regular and flex-time non-appropriated fund positions ending
on 26 April 2002, for the following positions:
(1) Cashier, NF-03501, Open Continuous Announcement No. 03, U.S. Army,
415th Base Support Battalion, Armstrong's Club, Kaisersalutern, Germany;
(2) Assistant Bartender, NA-7405-01, Open Continuous Announcement No. 02,
U.S. Army, 415th Base Support Battalion, Kazabra Club, Kaiserslautern,
Germany;
(3) Custodial Worker, NA-3566-02, Open Continuous Announcement No. 05,
U.S. Army, 415th Base Support Battalion, Armstrong's Club, Kaiserslautern,
Germany; and
(4) Assistant Bartender, NA-7405-01, Open Continuous Announcement No. 02,
U.S. Army, 415th Base Support Battalion, Kazabra Club, Kaiserslautern,
Germany.
d. Agency officials of the 6th Area Support Group, Stuttgart, Germany
either did not select complainant or chose not to make a selection to
various regular and flex-time non-appropriated fund positions ending on
26 April 2002, for the following positions:
(1) Clerk (Admin Ser), NF-0303-02, Announcement No. NAF-ST-010613-B,
U.S. Army Europe, Patch Barracks, Child Youth Services, Stuttgart,
Germany;
(2) Food Service Worker, NA-7408-04, Announcement No. NAF-ST-010815-A,
U.S. Army Europe, Kelley Bowling Center, Stuttgart, Germany;
(3) Desk Clerk, NF-1176-01, Announcement No. NAF-ST-010808-A, U.S. Army
Europe, Robinson Barracks, Hilltop Hotel, Stuttgart, Germany;
(4) Desk Clerk, NF-1176-01, Announcement No. NAF-ST-010807, U.S. Army
Europe, Patch Barracks, Swabian Inn, Stuttgart, Germany.
e. Agency officials of the 80th Support Group, Chievres, Belgium either
did not select complainant or chose not to make a selection to various
regular and flex-time non-appropriated fund positions ending on 26 April
2002, for the following positions:
(1) Office Automation Clerk, NF-0326-02, Announcement No. NAF-CHI-OCA02,
U.S. Army, SHAPE, Youth Services, Chievres, Belgium;
(2) Recreation Aide, NF-0189-01, Announcement No. NAF-CHI-OCA01,
U.S. Army 254th Base Support Battalion, Director of Community Activities,
Bowling Center, Schinnen, Netherlands;
(3) Cook, NA-7405-05, Announcement No. NAF-CHI-011019-B, U.S. Army, 80th
Area Support Group, NATO Support Activity, Child Care, Brussels, Belgium;
(4) Cook, NA-7405-05, Announcement No. NAF-CHI-011212-A, U.S. Army,
254th Base Support Battalion, Child Care Center, Schinnen, Netherlands;
(5) Laborer, NA-3502-03, Announcement No. NAF-CHI-010411-B, U.S. Army,
80th Area Support Group, Director of Community Activities, Hotel
Maisieres, Chievres, Belgium;
(6) Maintenance Worker, NA-4749-07, Announcement No. NAF-CHI-OC01,
U.S. Army, 80th Area Support Group, Director of Community Activities,
Chievres, Belgium;
(7) Recreation Aide, NF-0189-01, Announcement No. NAF-CHI-OCA01,
U.S. Army, 254th Base Support Battalion, Director of Community Activities,
Bowling Center, Schinnen, Netherlands;
(8) Recreation Assistant, Announcement No. NAF-CHI-OCA01, Chievres,
Belgium;
(9) Food Service Worker, Announcement No. NAF-CHI-OCA07, Chievres,
Belgium;
(10) Bar Assistant, Announcement No. NAF-CHI-OCA05, Benelux, NAF
Personnel Office;
(11) Food Service Worker, NA-7408-03, Announcement No. NAF-CHI-OCA07,
80th Area Support Group, Director of Community Activities, Lounge
Division, Building 7, Brussels, Belgium;
(12) Bar Assistant, NA-7405-02, Announcement No. NAF05;
(13) Recreation Aide, NA-0189-01, Announcement No. NAF01, Benelux NAF
Personnel Office; and
(14) Food Service Worker, NA-7408-03, Announcement No. NAF-CHI-OCA07,
254th Base Support Battalion, Director of Community Activities, Bowling
Center, Schinnen, Netherlands.
The agency dismissed the complaint on the grounds of untimely EEO
Counselor contact. The agency also dismissed claims d. (3) - (4) and
e. (8) through (14) for failure to state a claim.
Regarding claims a. (1) - (3), the agency found that complainant applied
for the subject positions between July and August 2001. The agency also
found that according to complainant, he contacted the agency's Darmstadt
NAF Personnel Office several times after submitting his applications
between July and August 2001, but never received a response regarding the
status of his applications. The agency determined that complainant did
not contact an EEO Counselor until August 5, 2002, and that complainant
had a reasonable suspicion of discrimination of his non-selections more
than 45 days before initiating contact for claims a. (1)-(3).
Regarding claim b.(1), the agency noted that during EEO counseling,
complainant stated that he received a written notification informing
him that the subject position had been cancelled on August 10, 2001.
Regarding claims b.(2) through (6), the agency noted that during
EEO counseling, complainant claimed that on August 31, 2001, he was
informed by a Hanau NAF Personnel Office member that his applications
for the subject positions were lost; and that in September 2001, he
resubmitted applications for the subject positions and that at the
end of September 2001, he was informed that his applications could not
be located. The agency found that complainant's initial EEO Counselor
contact occurred on August 5, 2002, and that complainant had a reasonable
suspicion of unlawful employment discrimination more than 45 days before
initiating contact for claims b. (1)-(6).
Regarding claims c. (1) and (2), the agency determined that complainant
suspected discrimination on or about February 14, 2002, when he received
letters notifying him that the two subject positions had been cancelled.
Regarding claim c.(3), the agency noted that during the initial EEO
contact, complainant stated that he was referred for the subject
position but that another candidate was selected on April 24, 2002.
Regarding claim c.(4), the agency noted that complainant stated he
was referred for the subject position but that another candidate was
selected on April 26, 2002. The agency found that complainant's initial
EEO Counselor contact occurred on August 5, 2002, and that complainant
had a reasonable suspicion of discrimination more than 45 days before
initiating contact for claims c. (1)-(4).
Regarding claim d. (1), the agency noted that during EEO counseling,
complainant stated that he was informed by letter dated September 14,
2001, that he was not referred for the subject position and that a
Military Spouse Preference candidate was selected. Regarding claim
d.(2), the agency noted during EEO counseling, complainant stated that
he was referred for the subject position but declined an interview in
September 2001, because it was a flexible schedule position. Regarding
claims d.(3) and (4), the agency noted that during EEO Counseling,
complainant provided two letters dated September 4 and September 7,
2001, respectively, notifying him that his applications for the subject
positions were not being considered as his applications indicated interest
in only regular full-time and part-time positions. The agency found
that complainant's initial EEO Counselor contact occurred on August 5,
2002, and that complainant had a reasonable suspicion of discrimination
more than 45 days before initiating contact for claims d. (1)-(4).
Furthermore, the agency also dismissed claims d. (3) and (4), for failure
to state a claim, finding that complainant failed to establish that he
suffered a harm or loss regarding a term, condition, or privilege of
his employment.
Regarding claims e. (1) and (2), the agency noted that during EEO
counseling, complainant stated that by letters dated September 6 and
17, 2001, respectively, he was informed that he was referred but not
selected for the subject positions. Regarding claims e.(3) and (4),
the agency noted that during EEO counseling, complainant stated that
by letter dated January 10, 2002, he was informed that he was found
not qualified for the subject positions. Regarding claims e.(5) and
(6), the agency noted that during EEO counseling, complainant stated
that by letter dated April 22, 2002, he was found not qualified for
the subject positions. Regarding claim e.(7), the agency noted that
complainant stated that by letter dated May 7, 2002, he was informed
that he was referred but not selected for the subject position.
Regarding claims e. (8)-(10), complainant stated that he was offered but
declined the subject flexible schedule positions on September 13, 2001.
Regarding claim e.(11), the agency noted that complainant stated that
he was offered but declined the subject flexible schedule position
in August 2001. Regarding claims e. (12) and (13), the agency noted
that complainant was offered but declined the subject flexible schedule
positions in April 2002. Regarding claim e.(14), the agency noted that
complainant stated he was offered the subject regular part-time position
but declined it on June 18, 2002, because he had already made plans to
return to the United States and had sold his car. The agency determined
that complainant did not contact an EEO Counselor until August 5, 2002,
and that complainant had a reasonable suspicion of discrimination more
than 45 days before initiating contact for claims e. (1)-(14).
Furthermore, the agency also dismissed claims e.(8)-(14) for failure
to state a claim, finding that complainant had not established that he
was an aggrieved employee. Specifically, complainant was offered the
subject positions but declined to accept the appointments.
On appeal, complainant contends that his EEO contact was timely.
Complainant contends that he contacted the EEO office in August/September
2001, concerning a matter that he had with the agency's employment
officials. Complainant further contends that during his meeting with the
EEO Official, he was informed that he would have to go to each branch
area EEO Office, filing separate allegations myself, as her primary
responsibility was only with the 415th Base Battalion. As a result,
complainant decided to contact his Congresswoman, the American Civil
Liberties Union and other agencies from November 2001 to February 2002,
concerning his claims of discrimination.
In response, the agency contends that complainant obtained information on
how to initiate EEO contact from an EEO Officer on September 10, 2001,
and that complainant contacted his Congresswoman's office in May 2002.
In support of its argument, the agency submits an affidavit from the
EEO Officer wherein she states that she advised complainant of the time
limits for initiating contact with an EEO Counselor and the information
he should bring to the Counselor. The EEO Officer further states that
complainant had no further contact with the 415th EEO Office until August
5, 2002, concerning his numerous non-selections.
Claims e. (8) - (14)
The regulation set forth at 29 C.F.R. § 1614.107(a)(1) provides, in
relevant part, that an agency shall dismiss a complaint that fails to
state a claim. An agency shall accept a complaint from any aggrieved
employee or applicant for employment who believes that he or she has been
discriminated against by that agency because of race, color, religion,
sex, national origin, age or disabling condition. 29 C.F.R. §§ 1614.103,
.106(a). The Commission's federal 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).
With respect to claims e. (8) - (14), complainant has not established
that the alleged incidents identified therein resulted in a personal loss
or harm relating to a term, condition, or privilege of his employment.
Specifically, we find that the alleged incidents did not result in
an adverse action because the record supports a determination that
complainant was offered but declined seven employment offers for the
positions identified in these claims. Therefore, we find that the agency
properly dismissed claims e. (8) through (14) for failure to state a
claim.
Claims a. (1)-(3), b. (1)-(6), c. (1)-(4), d. (1)-(4) and e. (1)-(7)
Legal Analysis:
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).
With respect to claims e. (8) - (14), complainant has not established
that the alleged incidents identified therein resulted in a personal loss
or harm relating to a term, condition, or privilege of his employment.
Specifically, we find that the alleged incidents did not result in
an adverse action because the record supports a determination that
complainant was offered but declined seven employment offers for the
positions identified in these claims. Therefore, we find that the agency
properly dismissed claims e. (8) through (14) for failure to state a
claim.
Claims a. (1)-(3), b. (1)-(6), c. (1)-(4), d. (1)-(4) and e. (1)-(7)
EEOC Regulation 29 C.F.R. § 1614.105(a)(1) requires that complaints of
discrimination should be brought to the attention of the Equal Employment
Opportunity Counselor within forty-five (45) days of the date of the
matter alleged to be discriminatory or, in the case of a personnel
action, within forty-five (45) days of the effective date of the action.
The Commission has adopted a "reasonable suspicion" standard (as opposed
to a "supportive facts" standard) to determine when the forty-five (45)
day limitation period is triggered. See Howard v. Department of the Navy,
EEOC Request No. 05970852 (February 11, 1999). Thus, the time limitation
is not triggered until a complainant reasonably suspects discrimination,
but before all the facts that support a charge of discrimination have
become apparent.
EEOC Regulations provide that the agency or the Commission shall extend
the time limits when the individual shows that he was not notified of the
time limits and was not otherwise aware of them, that he did not know
and reasonably should not have known that the discriminatory matter or
personnel action occurred, that despite due diligence he was prevented
by circumstances beyond his control from contacting the Counselor within
the time limits, or for other reasons considered sufficient by the agency
or the Commission.
The record supports a determination that complainant had, or should have
had a reasonable suspicion of unlawful employment discrimination from July
2001 to May 2002, concerning his non-selections. Specifically, we find
that the record reveals that complainant first initiated EEO Counselor
contact on September 10, 2001, concerning his non-selections. The record
further reveals that after the EEO Counselor informed complainant that she
needed additional information concerning his non-selections, complainant
stated that he needed more time to decide whether or not to proceed with
the EEO process. We note that complainant, instead, again contacted
an EEO Counselor on August 5, 2002, concerning his non-selections,
and started a new EEO counseling process. Based on the evidence of the
record, we find that complainant abandoned his first contact with the EEO
Counselor on September 10, 2001. The Commission has held that in order
to establish EEO Counselor contact, an individual must contact an agency
official logically connected to the EEO process and exhibit an intent to
begin the EEO process. Allen v. USPS, EEOC Request No. 05950933 (July 8,
1996). Complainant's re-initiation of EEO Counselor contact, on August 5,
2002, is beyond the forty-five (45) day limitation period. On appeal,
complainant has presented no persuasive arguments or evidence warranting
an extension of the time limit for initiating EEO Counselor contact.
Therefore, we find that the agency properly dismissed claims a. (1)-(3),
b. (1)-(6), c. (1)-(4), d. (1)-(4) and e. (1)-(7) for untimely Counselor
contact.
Final Decision:
Accordingly, the agency's dismissal of the complaint was proper and is AFFIRMED. | James C. Moon v. Department of the Army
01A31707
June 3, 2004
.
James C. Moon,
Complainant,
v.
R.L. Brownlee,
Acting Secretary,
Department of the Army,
Agency.
Appeal No. 01A31707
Agency No. AREUKAI02AUG000008
DECISION
Complainant filed a timely appeal with this Commission from the final
agency decision dated January 6, 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.
The record reflects that complainant contacted an agency EEO Counselor in
September 2001, regarding non-selections for various agency positions.
When an EEO Counselor informed complainant that more information was
necessary regarding the non-selections, complainant indicated that
he needed more time in which to decide whether or not he was going to
proceed with the EEO complaint process.
On August 5, 2002, complainant contacted the EEO office claiming that
he was discriminated against on the basis of religion. Informal efforts
to resolve complainant's concerns were unsuccessful.
On October 7, 2002, complainant filed a formal complaint, alleging that
he was the victim of unlawful employment discrimination on the bases of
religion and in reprisal for prior protected activity.<1>
On January 6, 2003, the agency issued a final decision. Therein, the
agency framed the claims as follows:
a. Agency officials of the 233d Base Support Battalion Darmstadt,
Germany either did not
select complainant or chose not to make a selection to various regular
and flex-time non- appropriated fund positions ending on 26 April
2002 for the following positions:
(1) Club Operations Assistant, NF-1101-01, Announcement
No. NAF-DA-OC-03, U.S. Army Europe, Darmstadt, Germany;
(2) Bar Assistant, NA-7405-01/02/03, Announcement No. NAF-DA-OC-01,
U.S. Army Europe, Darmstadt, Germany; and
(3) Club Operations Assistant, NF-1101-01/02, Announcement
No. NAF-DA-OC-05, U.S. Army Europe, Darmstadt, Germany.
b. Agency officials of the 104th Area Support Group, Hanau, Germany
either did not select complainant or chose not to make a selection to
various regular and flex-time non-appropriated fund positions ending on
26 April 2002, for the following positions:
(1) Administrative Assistant, NF-303-02, Announcement
No. NAF-HN-01-SP-043, Hanau, Germany;
(2) Recreation Aide, NF-0189-01, Announcement
No. NAF-GI-01-SP-CDR-004. Geissen, Germany;
(3) Theater Aide, NF-0189-01, Announcement No. NAF-GI-HN-01-SP-036,
Hanau, Germany;
(4) Desk Clerk, NF-1176-01, Announcement No. NAF-HN-01-OC-009, Hanau,
Germany;
(5) Club Aide, NF-1101-01, Announcement No. NAF-HN-01-OC-002, 414th
Base Support Battalion, Hanau, Germany; and
(6) Recreation Assistant, NF-0189-02, Announcement No. NAF-HN-01-SP-036,
Hanau, Germany.
c. Agency officials of the 415th Base Support Battalion Kaisersalutern,
Germany either did not select complainant or chose not to make a selection
to various regular and flex-time non-appropriated fund positions ending
on 26 April 2002, for the following positions:
(1) Cashier, NF-03501, Open Continuous Announcement No. 03, U.S. Army,
415th Base Support Battalion, Armstrong's Club, Kaisersalutern, Germany;
(2) Assistant Bartender, NA-7405-01, Open Continuous Announcement No. 02,
U.S. Army, 415th Base Support Battalion, Kazabra Club, Kaiserslautern,
Germany;
(3) Custodial Worker, NA-3566-02, Open Continuous Announcement No. 05,
U.S. Army, 415th Base Support Battalion, Armstrong's Club, Kaiserslautern,
Germany; and
(4) Assistant Bartender, NA-7405-01, Open Continuous Announcement No. 02,
U.S. Army, 415th Base Support Battalion, Kazabra Club, Kaiserslautern,
Germany.
d. Agency officials of the 6th Area Support Group, Stuttgart, Germany
either did not select complainant or chose not to make a selection to
various regular and flex-time non-appropriated fund positions ending on
26 April 2002, for the following positions:
(1) Clerk (Admin Ser), NF-0303-02, Announcement No. NAF-ST-010613-B,
U.S. Army Europe, Patch Barracks, Child Youth Services, Stuttgart,
Germany;
(2) Food Service Worker, NA-7408-04, Announcement No. NAF-ST-010815-A,
U.S. Army Europe, Kelley Bowling Center, Stuttgart, Germany;
(3) Desk Clerk, NF-1176-01, Announcement No. NAF-ST-010808-A, U.S. Army
Europe, Robinson Barracks, Hilltop Hotel, Stuttgart, Germany;
(4) Desk Clerk, NF-1176-01, Announcement No. NAF-ST-010807, U.S. Army
Europe, Patch Barracks, Swabian Inn, Stuttgart, Germany.
e. Agency officials of the 80th Support Group, Chievres, Belgium either
did not select complainant or chose not to make a selection to various
regular and flex-time non-appropriated fund positions ending on 26 April
2002, for the following positions:
(1) Office Automation Clerk, NF-0326-02, Announcement No. NAF-CHI-OCA02,
U.S. Army, SHAPE, Youth Services, Chievres, Belgium;
(2) Recreation Aide, NF-0189-01, Announcement No. NAF-CHI-OCA01,
U.S. Army 254th Base Support Battalion, Director of Community Activities,
Bowling Center, Schinnen, Netherlands;
(3) Cook, NA-7405-05, Announcement No. NAF-CHI-011019-B, U.S. Army, 80th
Area Support Group, NATO Support Activity, Child Care, Brussels, Belgium;
(4) Cook, NA-7405-05, Announcement No. NAF-CHI-011212-A, U.S. Army,
254th Base Support Battalion, Child Care Center, Schinnen, Netherlands;
(5) Laborer, NA-3502-03, Announcement No. NAF-CHI-010411-B, U.S. Army,
80th Area Support Group, Director of Community Activities, Hotel
Maisieres, Chievres, Belgium;
(6) Maintenance Worker, NA-4749-07, Announcement No. NAF-CHI-OC01,
U.S. Army, 80th Area Support Group, Director of Community Activities,
Chievres, Belgium;
(7) Recreation Aide, NF-0189-01, Announcement No. NAF-CHI-OCA01,
U.S. Army, 254th Base Support Battalion, Director of Community Activities,
Bowling Center, Schinnen, Netherlands;
(8) Recreation Assistant, Announcement No. NAF-CHI-OCA01, Chievres,
Belgium;
(9) Food Service Worker, Announcement No. NAF-CHI-OCA07, Chievres,
Belgium;
(10) Bar Assistant, Announcement No. NAF-CHI-OCA05, Benelux, NAF
Personnel Office;
(11) Food Service Worker, NA-7408-03, Announcement No. NAF-CHI-OCA07,
80th Area Support Group, Director of Community Activities, Lounge
Division, Building 7, Brussels, Belgium;
(12) Bar Assistant, NA-7405-02, Announcement No. NAF05;
(13) Recreation Aide, NA-0189-01, Announcement No. NAF01, Benelux NAF
Personnel Office; and
(14) Food Service Worker, NA-7408-03, Announcement No. NAF-CHI-OCA07,
254th Base Support Battalion, Director of Community Activities, Bowling
Center, Schinnen, Netherlands.
The agency dismissed the complaint on the grounds of untimely EEO
Counselor contact. The agency also dismissed claims d. (3) - (4) and
e. (8) through (14) for failure to state a claim.
Regarding claims a. (1) - (3), the agency found that complainant applied
for the subject positions between July and August 2001. The agency also
found that according to complainant, he contacted the agency's Darmstadt
NAF Personnel Office several times after submitting his applications
between July and August 2001, but never received a response regarding the
status of his applications. The agency determined that complainant did
not contact an EEO Counselor until August 5, 2002, and that complainant
had a reasonable suspicion of discrimination of his non-selections more
than 45 days before initiating contact for claims a. (1)-(3).
Regarding claim b.(1), the agency noted that during EEO counseling,
complainant stated that he received a written notification informing
him that the subject position had been cancelled on August 10, 2001.
Regarding claims b.(2) through (6), the agency noted that during
EEO counseling, complainant claimed that on August 31, 2001, he was
informed by a Hanau NAF Personnel Office member that his applications
for the subject positions were lost; and that in September 2001, he
resubmitted applications for the subject positions and that at the
end of September 2001, he was informed that his applications could not
be located. The agency found that complainant's initial EEO Counselor
contact occurred on August 5, 2002, and that complainant had a reasonable
suspicion of unlawful employment discrimination more than 45 days before
initiating contact for claims b. (1)-(6).
Regarding claims c. (1) and (2), the agency determined that complainant
suspected discrimination on or about February 14, 2002, when he received
letters notifying him that the two subject positions had been cancelled.
Regarding claim c.(3), the agency noted that during the initial EEO
contact, complainant stated that he was referred for the subject
position but that another candidate was selected on April 24, 2002.
Regarding claim c.(4), the agency noted that complainant stated he
was referred for the subject position but that another candidate was
selected on April 26, 2002. The agency found that complainant's initial
EEO Counselor contact occurred on August 5, 2002, and that complainant
had a reasonable suspicion of discrimination more than 45 days before
initiating contact for claims c. (1)-(4).
Regarding claim d. (1), the agency noted that during EEO counseling,
complainant stated that he was informed by letter dated September 14,
2001, that he was not referred for the subject position and that a
Military Spouse Preference candidate was selected. Regarding claim
d.(2), the agency noted during EEO counseling, complainant stated that
he was referred for the subject position but declined an interview in
September 2001, because it was a flexible schedule position. Regarding
claims d.(3) and (4), the agency noted that during EEO Counseling,
complainant provided two letters dated September 4 and September 7,
2001, respectively, notifying him that his applications for the subject
positions were not being considered as his applications indicated interest
in only regular full-time and part-time positions. The agency found
that complainant's initial EEO Counselor contact occurred on August 5,
2002, and that complainant had a reasonable suspicion of discrimination
more than 45 days before initiating contact for claims d. (1)-(4).
Furthermore, the agency also dismissed claims d. (3) and (4), for failure
to state a claim, finding that complainant failed to establish that he
suffered a harm or loss regarding a term, condition, or privilege of
his employment.
Regarding claims e. (1) and (2), the agency noted that during EEO
counseling, complainant stated that by letters dated September 6 and
17, 2001, respectively, he was informed that he was referred but not
selected for the subject positions. Regarding claims e.(3) and (4),
the agency noted that during EEO counseling, complainant stated that
by letter dated January 10, 2002, he was informed that he was found
not qualified for the subject positions. Regarding claims e.(5) and
(6), the agency noted that during EEO counseling, complainant stated
that by letter dated April 22, 2002, he was found not qualified for
the subject positions. Regarding claim e.(7), the agency noted that
complainant stated that by letter dated May 7, 2002, he was informed
that he was referred but not selected for the subject position.
Regarding claims e. (8)-(10), complainant stated that he was offered but
declined the subject flexible schedule positions on September 13, 2001.
Regarding claim e.(11), the agency noted that complainant stated that
he was offered but declined the subject flexible schedule position
in August 2001. Regarding claims e. (12) and (13), the agency noted
that complainant was offered but declined the subject flexible schedule
positions in April 2002. Regarding claim e.(14), the agency noted that
complainant stated he was offered the subject regular part-time position
but declined it on June 18, 2002, because he had already made plans to
return to the United States and had sold his car. The agency determined
that complainant did not contact an EEO Counselor until August 5, 2002,
and that complainant had a reasonable suspicion of discrimination more
than 45 days before initiating contact for claims e. (1)-(14).
Furthermore, the agency also dismissed claims e.(8)-(14) for failure
to state a claim, finding that complainant had not established that he
was an aggrieved employee. Specifically, complainant was offered the
subject positions but declined to accept the appointments.
On appeal, complainant contends that his EEO contact was timely.
Complainant contends that he contacted the EEO office in August/September
2001, concerning a matter that he had with the agency's employment
officials. Complainant further contends that during his meeting with the
EEO Official, he was informed that he would have to go to each branch
area EEO Office, filing separate allegations myself, as her primary
responsibility was only with the 415th Base Battalion. As a result,
complainant decided to contact his Congresswoman, the American Civil
Liberties Union and other agencies from November 2001 to February 2002,
concerning his claims of discrimination.
In response, the agency contends that complainant obtained information on
how to initiate EEO contact from an EEO Officer on September 10, 2001,
and that complainant contacted his Congresswoman's office in May 2002.
In support of its argument, the agency submits an affidavit from the
EEO Officer wherein she states that she advised complainant of the time
limits for initiating contact with an EEO Counselor and the information
he should bring to the Counselor. The EEO Officer further states that
complainant had no further contact with the 415th EEO Office until August
5, 2002, concerning his numerous non-selections.
Claims e. (8) - (14)
The regulation set forth at 29 C.F.R. § 1614.107(a)(1) provides, in
relevant part, that an agency shall dismiss a complaint that fails to
state a claim. An agency shall accept a complaint from any aggrieved
employee or applicant for employment who believes that he or she has been
discriminated against by that agency because of race, color, religion,
sex, national origin, age or disabling condition. 29 C.F.R. §§ 1614.103,
.106(a). The Commission's federal 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).
With respect to claims e. (8) - (14), complainant has not established
that the alleged incidents identified therein resulted in a personal loss
or harm relating to a term, condition, or privilege of his employment.
Specifically, we find that the alleged incidents did not result in
an adverse action because the record supports a determination that
complainant was offered but declined seven employment offers for the
positions identified in these claims. Therefore, we find that the agency
properly dismissed claims e. (8) through (14) for failure to state a
claim.
Claims a. (1)-(3), b. (1)-(6), c. (1)-(4), d. (1)-(4) and e. (1)-(7)
EEOC Regulation 29 C.F.R. § 1614.105(a)(1) requires that complaints of
discrimination should be brought to the attention of the Equal Employment
Opportunity Counselor within forty-five (45) days of the date of the
matter alleged to be discriminatory or, in the case of a personnel
action, within forty-five (45) days of the effective date of the action.
The Commission has adopted a "reasonable suspicion" standard (as opposed
to a "supportive facts" standard) to determine when the forty-five (45)
day limitation period is triggered. See Howard v. Department of the Navy,
EEOC Request No. 05970852 (February 11, 1999). Thus, the time limitation
is not triggered until a complainant reasonably suspects discrimination,
but before all the facts that support a charge of discrimination have
become apparent.
EEOC Regulations provide that the agency or the Commission shall extend
the time limits when the individual shows that he was not notified of the
time limits and was not otherwise aware of them, that he did not know
and reasonably should not have known that the discriminatory matter or
personnel action occurred, that despite due diligence he was prevented
by circumstances beyond his control from contacting the Counselor within
the time limits, or for other reasons considered sufficient by the agency
or the Commission.
The record supports a determination that complainant had, or should have
had a reasonable suspicion of unlawful employment discrimination from July
2001 to May 2002, concerning his non-selections. Specifically, we find
that the record reveals that complainant first initiated EEO Counselor
contact on September 10, 2001, concerning his non-selections. The record
further reveals that after the EEO Counselor informed complainant that she
needed additional information concerning his non-selections, complainant
stated that he needed more time to decide whether or not to proceed with
the EEO process. We note that complainant, instead, again contacted
an EEO Counselor on August 5, 2002, concerning his non-selections,
and started a new EEO counseling process. Based on the evidence of the
record, we find that complainant abandoned his first contact with the EEO
Counselor on September 10, 2001. The Commission has held that in order
to establish EEO Counselor contact, an individual must contact an agency
official logically connected to the EEO process and exhibit an intent to
begin the EEO process. Allen v. USPS, EEOC Request No. 05950933 (July 8,
1996). Complainant's re-initiation of EEO Counselor contact, on August 5,
2002, is beyond the forty-five (45) day limitation period. On appeal,
complainant has presented no persuasive arguments or evidence warranting
an extension of the time limit for initiating EEO Counselor contact.
Therefore, we find that the agency properly dismissed claims a. (1)-(3),
b. (1)-(6), c. (1)-(4), d. (1)-(4) and e. (1)-(7) for untimely Counselor
contact.
Accordingly, the agency's dismissal of the complaint was proper and is
AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
The Commission may, in its discretion, reconsider the decision in this
case if the complainant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. The appellate decision involved a clearly erroneous interpretation
of material fact or law; or
2. The appellate decision will have a substantial impact on the policies,
practices, or operations of the agency.
Requests to reconsider, with supporting statement or brief, must be filed
with the Office of Federal Operations (OFO) within thirty (30) calendar
days of receipt of this decision or within twenty (20) calendar days of
receipt of another party's timely request for reconsideration. See 29
C.F.R. § 1614.405; Equal Employment Opportunity Management Directive for
29 C.F.R. Part 1614 (EEO MD-110), 9-18 (November 9, 1999). All requests
and arguments must be submitted to the Director, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. In the absence of a legible postmark, the
request to reconsider shall be deemed timely filed if it is received by
mail within five days of the expiration of the applicable filing period.
See 29 C.F.R. § 1614.604. The request or opposition must also include
proof of service on the other party.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely, unless extenuating circumstances
prevented the timely filing of the request. Any supporting documentation
must be submitted with your request for reconsideration. The Commission
will consider requests for reconsideration filed after the deadline only
in very limited circumstances. See 29 C.F.R. § 1614.604(c).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S0900)
You have the right to file a civil action in an appropriate United States
District Court within ninety (90) calendar days from the date that you
receive this decision. If you file a civil action, you must name as
the defendant in the complaint the person who is the official agency head
or department head, identifying that person by his or her full name and
official title. Failure to do so may result in the dismissal of your
case in court. "Agency" or "department" means the national organization,
and not the local office, facility or department in which you work. If you
file a request to reconsider and also file a civil action, filing a civil
action will terminate the administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z1199)
If you decide to file a civil action, and if you do not have or cannot
afford the services of an attorney, you may request that the Court appoint
an attorney to represent you and that the Court permit you to file the
action without payment of fees, costs, or other security. See Title VII
of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq.;
the Rehabilitation Act of 1973, as amended, 29 U.S.C. §§ 791, 794(c).
The grant or denial of the request is within the sole discretion of
the Court. Filing a request for an attorney does not extend your time
in which to file a civil action. Both the request and the civil action
must be filed within the time limits as stated in the paragraph above
("Right to File A Civil Action").
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
June 3, 2004
__________________
Date
1 The record reflects that complainant
subsequently withdrew reprisal as a basis.
| [
"Diaz v. Department of the Air Force, EEOC Request No. 05931049 (April 21, 1994)",
"Howard v. Department of the Navy, EEOC Request No. 05970852 (February 11, 1999)",
"Allen v. USPS, EEOC Request No. 05950933 (July 8, 1996)",
"29 C.F.R. § 1614.107(a)",
"29 C.F.R. § 1614.105(a)",
"29 C.F.R. § 1614.405",
"... | [
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0.004711318761110306,
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0.021495172753930092,
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0.021459363400936127,
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... |
102 | https://www.eeoc.gov/sites/default/files/migrated_files/decisions/01a31707.txt | 01a31707.txt | TXT | text/plain | 21,765 | James C. Moon v. Department of the Army 01A31707 June 3, 2004 . James C. Moon, Complainant, v. R.L. Brownlee, Acting Secretary, Department of the Army, Agency. | June 3, 2004 | Appeal Number: 01A31707
Case Facts:
Complainant filed a timely appeal with this Commission from the final
agency decision dated January 6, 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.
The record reflects that complainant contacted an agency EEO Counselor in
September 2001, regarding non-selections for various agency positions.
When an EEO Counselor informed complainant that more information was
necessary regarding the non-selections, complainant indicated that
he needed more time in which to decide whether or not he was going to
proceed with the EEO complaint process.
On August 5, 2002, complainant contacted the EEO office claiming that
he was discriminated against on the basis of religion. Informal efforts
to resolve complainant's concerns were unsuccessful.
On October 7, 2002, complainant filed a formal complaint, alleging that
he was the victim of unlawful employment discrimination on the bases of
religion and in reprisal for prior protected activity.<1>
On January 6, 2003, the agency issued a final decision. Therein, the
agency framed the claims as follows:
a. Agency officials of the 233d Base Support Battalion Darmstadt,
Germany either did not
select complainant or chose not to make a selection to various regular
and flex-time non- appropriated fund positions ending on 26 April
2002 for the following positions:
(1) Club Operations Assistant, NF-1101-01, Announcement
No. NAF-DA-OC-03, U.S. Army Europe, Darmstadt, Germany;
(2) Bar Assistant, NA-7405-01/02/03, Announcement No. NAF-DA-OC-01,
U.S. Army Europe, Darmstadt, Germany; and
(3) Club Operations Assistant, NF-1101-01/02, Announcement
No. NAF-DA-OC-05, U.S. Army Europe, Darmstadt, Germany.
b. Agency officials of the 104th Area Support Group, Hanau, Germany
either did not select complainant or chose not to make a selection to
various regular and flex-time non-appropriated fund positions ending on
26 April 2002, for the following positions:
(1) Administrative Assistant, NF-303-02, Announcement
No. NAF-HN-01-SP-043, Hanau, Germany;
(2) Recreation Aide, NF-0189-01, Announcement
No. NAF-GI-01-SP-CDR-004. Geissen, Germany;
(3) Theater Aide, NF-0189-01, Announcement No. NAF-GI-HN-01-SP-036,
Hanau, Germany;
(4) Desk Clerk, NF-1176-01, Announcement No. NAF-HN-01-OC-009, Hanau,
Germany;
(5) Club Aide, NF-1101-01, Announcement No. NAF-HN-01-OC-002, 414th
Base Support Battalion, Hanau, Germany; and
(6) Recreation Assistant, NF-0189-02, Announcement No. NAF-HN-01-SP-036,
Hanau, Germany.
c. Agency officials of the 415th Base Support Battalion Kaisersalutern,
Germany either did not select complainant or chose not to make a selection
to various regular and flex-time non-appropriated fund positions ending
on 26 April 2002, for the following positions:
(1) Cashier, NF-03501, Open Continuous Announcement No. 03, U.S. Army,
415th Base Support Battalion, Armstrong's Club, Kaisersalutern, Germany;
(2) Assistant Bartender, NA-7405-01, Open Continuous Announcement No. 02,
U.S. Army, 415th Base Support Battalion, Kazabra Club, Kaiserslautern,
Germany;
(3) Custodial Worker, NA-3566-02, Open Continuous Announcement No. 05,
U.S. Army, 415th Base Support Battalion, Armstrong's Club, Kaiserslautern,
Germany; and
(4) Assistant Bartender, NA-7405-01, Open Continuous Announcement No. 02,
U.S. Army, 415th Base Support Battalion, Kazabra Club, Kaiserslautern,
Germany.
d. Agency officials of the 6th Area Support Group, Stuttgart, Germany
either did not select complainant or chose not to make a selection to
various regular and flex-time non-appropriated fund positions ending on
26 April 2002, for the following positions:
(1) Clerk (Admin Ser), NF-0303-02, Announcement No. NAF-ST-010613-B,
U.S. Army Europe, Patch Barracks, Child Youth Services, Stuttgart,
Germany;
(2) Food Service Worker, NA-7408-04, Announcement No. NAF-ST-010815-A,
U.S. Army Europe, Kelley Bowling Center, Stuttgart, Germany;
(3) Desk Clerk, NF-1176-01, Announcement No. NAF-ST-010808-A, U.S. Army
Europe, Robinson Barracks, Hilltop Hotel, Stuttgart, Germany;
(4) Desk Clerk, NF-1176-01, Announcement No. NAF-ST-010807, U.S. Army
Europe, Patch Barracks, Swabian Inn, Stuttgart, Germany.
e. Agency officials of the 80th Support Group, Chievres, Belgium either
did not select complainant or chose not to make a selection to various
regular and flex-time non-appropriated fund positions ending on 26 April
2002, for the following positions:
(1) Office Automation Clerk, NF-0326-02, Announcement No. NAF-CHI-OCA02,
U.S. Army, SHAPE, Youth Services, Chievres, Belgium;
(2) Recreation Aide, NF-0189-01, Announcement No. NAF-CHI-OCA01,
U.S. Army 254th Base Support Battalion, Director of Community Activities,
Bowling Center, Schinnen, Netherlands;
(3) Cook, NA-7405-05, Announcement No. NAF-CHI-011019-B, U.S. Army, 80th
Area Support Group, NATO Support Activity, Child Care, Brussels, Belgium;
(4) Cook, NA-7405-05, Announcement No. NAF-CHI-011212-A, U.S. Army,
254th Base Support Battalion, Child Care Center, Schinnen, Netherlands;
(5) Laborer, NA-3502-03, Announcement No. NAF-CHI-010411-B, U.S. Army,
80th Area Support Group, Director of Community Activities, Hotel
Maisieres, Chievres, Belgium;
(6) Maintenance Worker, NA-4749-07, Announcement No. NAF-CHI-OC01,
U.S. Army, 80th Area Support Group, Director of Community Activities,
Chievres, Belgium;
(7) Recreation Aide, NF-0189-01, Announcement No. NAF-CHI-OCA01,
U.S. Army, 254th Base Support Battalion, Director of Community Activities,
Bowling Center, Schinnen, Netherlands;
(8) Recreation Assistant, Announcement No. NAF-CHI-OCA01, Chievres,
Belgium;
(9) Food Service Worker, Announcement No. NAF-CHI-OCA07, Chievres,
Belgium;
(10) Bar Assistant, Announcement No. NAF-CHI-OCA05, Benelux, NAF
Personnel Office;
(11) Food Service Worker, NA-7408-03, Announcement No. NAF-CHI-OCA07,
80th Area Support Group, Director of Community Activities, Lounge
Division, Building 7, Brussels, Belgium;
(12) Bar Assistant, NA-7405-02, Announcement No. NAF05;
(13) Recreation Aide, NA-0189-01, Announcement No. NAF01, Benelux NAF
Personnel Office; and
(14) Food Service Worker, NA-7408-03, Announcement No. NAF-CHI-OCA07,
254th Base Support Battalion, Director of Community Activities, Bowling
Center, Schinnen, Netherlands.
The agency dismissed the complaint on the grounds of untimely EEO
Counselor contact. The agency also dismissed claims d. (3) - (4) and
e. (8) through (14) for failure to state a claim.
Regarding claims a. (1) - (3), the agency found that complainant applied
for the subject positions between July and August 2001. The agency also
found that according to complainant, he contacted the agency's Darmstadt
NAF Personnel Office several times after submitting his applications
between July and August 2001, but never received a response regarding the
status of his applications. The agency determined that complainant did
not contact an EEO Counselor until August 5, 2002, and that complainant
had a reasonable suspicion of discrimination of his non-selections more
than 45 days before initiating contact for claims a. (1)-(3).
Regarding claim b.(1), the agency noted that during EEO counseling,
complainant stated that he received a written notification informing
him that the subject position had been cancelled on August 10, 2001.
Regarding claims b.(2) through (6), the agency noted that during
EEO counseling, complainant claimed that on August 31, 2001, he was
informed by a Hanau NAF Personnel Office member that his applications
for the subject positions were lost; and that in September 2001, he
resubmitted applications for the subject positions and that at the
end of September 2001, he was informed that his applications could not
be located. The agency found that complainant's initial EEO Counselor
contact occurred on August 5, 2002, and that complainant had a reasonable
suspicion of unlawful employment discrimination more than 45 days before
initiating contact for claims b. (1)-(6).
Regarding claims c. (1) and (2), the agency determined that complainant
suspected discrimination on or about February 14, 2002, when he received
letters notifying him that the two subject positions had been cancelled.
Regarding claim c.(3), the agency noted that during the initial EEO
contact, complainant stated that he was referred for the subject
position but that another candidate was selected on April 24, 2002.
Regarding claim c.(4), the agency noted that complainant stated he
was referred for the subject position but that another candidate was
selected on April 26, 2002. The agency found that complainant's initial
EEO Counselor contact occurred on August 5, 2002, and that complainant
had a reasonable suspicion of discrimination more than 45 days before
initiating contact for claims c. (1)-(4).
Regarding claim d. (1), the agency noted that during EEO counseling,
complainant stated that he was informed by letter dated September 14,
2001, that he was not referred for the subject position and that a
Military Spouse Preference candidate was selected. Regarding claim
d.(2), the agency noted during EEO counseling, complainant stated that
he was referred for the subject position but declined an interview in
September 2001, because it was a flexible schedule position. Regarding
claims d.(3) and (4), the agency noted that during EEO Counseling,
complainant provided two letters dated September 4 and September 7,
2001, respectively, notifying him that his applications for the subject
positions were not being considered as his applications indicated interest
in only regular full-time and part-time positions. The agency found
that complainant's initial EEO Counselor contact occurred on August 5,
2002, and that complainant had a reasonable suspicion of discrimination
more than 45 days before initiating contact for claims d. (1)-(4).
Furthermore, the agency also dismissed claims d. (3) and (4), for failure
to state a claim, finding that complainant failed to establish that he
suffered a harm or loss regarding a term, condition, or privilege of
his employment.
Regarding claims e. (1) and (2), the agency noted that during EEO
counseling, complainant stated that by letters dated September 6 and
17, 2001, respectively, he was informed that he was referred but not
selected for the subject positions. Regarding claims e.(3) and (4),
the agency noted that during EEO counseling, complainant stated that
by letter dated January 10, 2002, he was informed that he was found
not qualified for the subject positions. Regarding claims e.(5) and
(6), the agency noted that during EEO counseling, complainant stated
that by letter dated April 22, 2002, he was found not qualified for
the subject positions. Regarding claim e.(7), the agency noted that
complainant stated that by letter dated May 7, 2002, he was informed
that he was referred but not selected for the subject position.
Regarding claims e. (8)-(10), complainant stated that he was offered but
declined the subject flexible schedule positions on September 13, 2001.
Regarding claim e.(11), the agency noted that complainant stated that
he was offered but declined the subject flexible schedule position
in August 2001. Regarding claims e. (12) and (13), the agency noted
that complainant was offered but declined the subject flexible schedule
positions in April 2002. Regarding claim e.(14), the agency noted that
complainant stated he was offered the subject regular part-time position
but declined it on June 18, 2002, because he had already made plans to
return to the United States and had sold his car. The agency determined
that complainant did not contact an EEO Counselor until August 5, 2002,
and that complainant had a reasonable suspicion of discrimination more
than 45 days before initiating contact for claims e. (1)-(14).
Furthermore, the agency also dismissed claims e.(8)-(14) for failure
to state a claim, finding that complainant had not established that he
was an aggrieved employee. Specifically, complainant was offered the
subject positions but declined to accept the appointments.
On appeal, complainant contends that his EEO contact was timely.
Complainant contends that he contacted the EEO office in August/September
2001, concerning a matter that he had with the agency's employment
officials. Complainant further contends that during his meeting with the
EEO Official, he was informed that he would have to go to each branch
area EEO Office, filing separate allegations myself, as her primary
responsibility was only with the 415th Base Battalion. As a result,
complainant decided to contact his Congresswoman, the American Civil
Liberties Union and other agencies from November 2001 to February 2002,
concerning his claims of discrimination.
In response, the agency contends that complainant obtained information on
how to initiate EEO contact from an EEO Officer on September 10, 2001,
and that complainant contacted his Congresswoman's office in May 2002.
In support of its argument, the agency submits an affidavit from the
EEO Officer wherein she states that she advised complainant of the time
limits for initiating contact with an EEO Counselor and the information
he should bring to the Counselor. The EEO Officer further states that
complainant had no further contact with the 415th EEO Office until August
5, 2002, concerning his numerous non-selections.
Claims e. (8) - (14)
The regulation set forth at 29 C.F.R. § 1614.107(a)(1) provides, in
relevant part, that an agency shall dismiss a complaint that fails to
state a claim. An agency shall accept a complaint from any aggrieved
employee or applicant for employment who believes that he or she has been
discriminated against by that agency because of race, color, religion,
sex, national origin, age or disabling condition. 29 C.F.R. §§ 1614.103,
.106(a). The Commission's federal 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).
With respect to claims e. (8) - (14), complainant has not established
that the alleged incidents identified therein resulted in a personal loss
or harm relating to a term, condition, or privilege of his employment.
Specifically, we find that the alleged incidents did not result in
an adverse action because the record supports a determination that
complainant was offered but declined seven employment offers for the
positions identified in these claims. Therefore, we find that the
agency properly dismissed claims e. (8) through (14) for failure to
state a claim.
Claims a. (1)-(3), b. (1)-(6), c. (1)-(4), d. (1)-(4) and e. (1)-(7)
Legal Analysis:
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).
With respect to claims e. (8) - (14), complainant has not established
that the alleged incidents identified therein resulted in a personal loss
or harm relating to a term, condition, or privilege of his employment.
Specifically, we find that the alleged incidents did not result in
an adverse action because the record supports a determination that
complainant was offered but declined seven employment offers for the
positions identified in these claims. Therefore, we find that the
agency properly dismissed claims e. (8) through (14) for failure to
state a claim.
Claims a. (1)-(3), b. (1)-(6), c. (1)-(4), d. (1)-(4) and e. (1)-(7)
EEOC Regulation 29 C.F.R. § 1614.105(a)(1) requires that complaints of
discrimination should be brought to the attention of the Equal Employment
Opportunity Counselor within forty-five (45) days of the date of the
matter alleged to be discriminatory or, in the case of a personnel
action, within forty-five (45) days of the effective date of the action.
The Commission has adopted a "reasonable suspicion" standard (as opposed
to a "supportive facts" standard) to determine when the forty-five (45)
day limitation period is triggered. See Howard v. Department of the Navy,
EEOC Request No. 05970852 (February 11, 1999). Thus, the time limitation
is not triggered until a complainant reasonably suspects discrimination,
but before all the facts that support a charge of discrimination have
become apparent.
EEOC Regulations provide that the agency or the Commission shall extend
the time limits when the individual shows that he was not notified of the
time limits and was not otherwise aware of them, that he did not know
and reasonably should not have known that the discriminatory matter or
personnel action occurred, that despite due diligence he was prevented
by circumstances beyond his control from contacting the Counselor within
the time limits, or for other reasons considered sufficient by the agency
or the Commission.
The record supports a determination that complainant had, or should have
had a reasonable suspicion of unlawful employment discrimination from July
2001 to May 2002, concerning his non-selections. Specifically, we find
that the record reveals that complainant first initiated EEO Counselor
contact on September 10, 2001, concerning his non-selections. The record
further reveals that after the EEO Counselor informed complainant that she
needed additional information concerning his non-selections, complainant
stated that he needed more time to decide whether or not to proceed with
the EEO process. We note that complainant, instead, again contacted
an EEO Counselor on August 5, 2002, concerning his non-selections,
and started a new EEO counseling process. Based on the evidence of the
record, we find that complainant abandoned his first contact with the EEO
Counselor on September 10, 2001. The Commission has held that in order
to establish EEO Counselor contact, an individual must contact an agency
official logically connected to the EEO process and exhibit an intent
to begin the EEO process. Allen v. USPS, EEOC Request No. 05950933
(July 8, 1996). Complainant's re-initiation of EEO Counselor contact,
on August 5, 2002, is beyond the forty-five (45) day limitation period.
On appeal, complainant has presented no persuasive arguments or evidence
warranting an extension of the time limit for initiating EEO Counselor
contact. Therefore, we find that the agency properly dismissed claims
a. (1)-(3), b. (1)-(6), c. (1)-(4), d. (1)-(4) and e. (1)-(7) for untimely
Counselor contact.
Final Decision:
Accordingly, the agency's dismissal of the complaint was proper and is AFFIRMED. | James C. Moon v. Department of the Army
01A31707
June 3, 2004
.
James C. Moon,
Complainant,
v.
R.L. Brownlee,
Acting Secretary,
Department of the Army,
Agency.
Appeal No. 01A31707
Agency No. AREUKAI02AUG000008
DECISION
Complainant filed a timely appeal with this Commission from the final
agency decision dated January 6, 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.
The record reflects that complainant contacted an agency EEO Counselor in
September 2001, regarding non-selections for various agency positions.
When an EEO Counselor informed complainant that more information was
necessary regarding the non-selections, complainant indicated that
he needed more time in which to decide whether or not he was going to
proceed with the EEO complaint process.
On August 5, 2002, complainant contacted the EEO office claiming that
he was discriminated against on the basis of religion. Informal efforts
to resolve complainant's concerns were unsuccessful.
On October 7, 2002, complainant filed a formal complaint, alleging that
he was the victim of unlawful employment discrimination on the bases of
religion and in reprisal for prior protected activity.<1>
On January 6, 2003, the agency issued a final decision. Therein, the
agency framed the claims as follows:
a. Agency officials of the 233d Base Support Battalion Darmstadt,
Germany either did not
select complainant or chose not to make a selection to various regular
and flex-time non- appropriated fund positions ending on 26 April
2002 for the following positions:
(1) Club Operations Assistant, NF-1101-01, Announcement
No. NAF-DA-OC-03, U.S. Army Europe, Darmstadt, Germany;
(2) Bar Assistant, NA-7405-01/02/03, Announcement No. NAF-DA-OC-01,
U.S. Army Europe, Darmstadt, Germany; and
(3) Club Operations Assistant, NF-1101-01/02, Announcement
No. NAF-DA-OC-05, U.S. Army Europe, Darmstadt, Germany.
b. Agency officials of the 104th Area Support Group, Hanau, Germany
either did not select complainant or chose not to make a selection to
various regular and flex-time non-appropriated fund positions ending on
26 April 2002, for the following positions:
(1) Administrative Assistant, NF-303-02, Announcement
No. NAF-HN-01-SP-043, Hanau, Germany;
(2) Recreation Aide, NF-0189-01, Announcement
No. NAF-GI-01-SP-CDR-004. Geissen, Germany;
(3) Theater Aide, NF-0189-01, Announcement No. NAF-GI-HN-01-SP-036,
Hanau, Germany;
(4) Desk Clerk, NF-1176-01, Announcement No. NAF-HN-01-OC-009, Hanau,
Germany;
(5) Club Aide, NF-1101-01, Announcement No. NAF-HN-01-OC-002, 414th
Base Support Battalion, Hanau, Germany; and
(6) Recreation Assistant, NF-0189-02, Announcement No. NAF-HN-01-SP-036,
Hanau, Germany.
c. Agency officials of the 415th Base Support Battalion Kaisersalutern,
Germany either did not select complainant or chose not to make a selection
to various regular and flex-time non-appropriated fund positions ending
on 26 April 2002, for the following positions:
(1) Cashier, NF-03501, Open Continuous Announcement No. 03, U.S. Army,
415th Base Support Battalion, Armstrong's Club, Kaisersalutern, Germany;
(2) Assistant Bartender, NA-7405-01, Open Continuous Announcement No. 02,
U.S. Army, 415th Base Support Battalion, Kazabra Club, Kaiserslautern,
Germany;
(3) Custodial Worker, NA-3566-02, Open Continuous Announcement No. 05,
U.S. Army, 415th Base Support Battalion, Armstrong's Club, Kaiserslautern,
Germany; and
(4) Assistant Bartender, NA-7405-01, Open Continuous Announcement No. 02,
U.S. Army, 415th Base Support Battalion, Kazabra Club, Kaiserslautern,
Germany.
d. Agency officials of the 6th Area Support Group, Stuttgart, Germany
either did not select complainant or chose not to make a selection to
various regular and flex-time non-appropriated fund positions ending on
26 April 2002, for the following positions:
(1) Clerk (Admin Ser), NF-0303-02, Announcement No. NAF-ST-010613-B,
U.S. Army Europe, Patch Barracks, Child Youth Services, Stuttgart,
Germany;
(2) Food Service Worker, NA-7408-04, Announcement No. NAF-ST-010815-A,
U.S. Army Europe, Kelley Bowling Center, Stuttgart, Germany;
(3) Desk Clerk, NF-1176-01, Announcement No. NAF-ST-010808-A, U.S. Army
Europe, Robinson Barracks, Hilltop Hotel, Stuttgart, Germany;
(4) Desk Clerk, NF-1176-01, Announcement No. NAF-ST-010807, U.S. Army
Europe, Patch Barracks, Swabian Inn, Stuttgart, Germany.
e. Agency officials of the 80th Support Group, Chievres, Belgium either
did not select complainant or chose not to make a selection to various
regular and flex-time non-appropriated fund positions ending on 26 April
2002, for the following positions:
(1) Office Automation Clerk, NF-0326-02, Announcement No. NAF-CHI-OCA02,
U.S. Army, SHAPE, Youth Services, Chievres, Belgium;
(2) Recreation Aide, NF-0189-01, Announcement No. NAF-CHI-OCA01,
U.S. Army 254th Base Support Battalion, Director of Community Activities,
Bowling Center, Schinnen, Netherlands;
(3) Cook, NA-7405-05, Announcement No. NAF-CHI-011019-B, U.S. Army, 80th
Area Support Group, NATO Support Activity, Child Care, Brussels, Belgium;
(4) Cook, NA-7405-05, Announcement No. NAF-CHI-011212-A, U.S. Army,
254th Base Support Battalion, Child Care Center, Schinnen, Netherlands;
(5) Laborer, NA-3502-03, Announcement No. NAF-CHI-010411-B, U.S. Army,
80th Area Support Group, Director of Community Activities, Hotel
Maisieres, Chievres, Belgium;
(6) Maintenance Worker, NA-4749-07, Announcement No. NAF-CHI-OC01,
U.S. Army, 80th Area Support Group, Director of Community Activities,
Chievres, Belgium;
(7) Recreation Aide, NF-0189-01, Announcement No. NAF-CHI-OCA01,
U.S. Army, 254th Base Support Battalion, Director of Community Activities,
Bowling Center, Schinnen, Netherlands;
(8) Recreation Assistant, Announcement No. NAF-CHI-OCA01, Chievres,
Belgium;
(9) Food Service Worker, Announcement No. NAF-CHI-OCA07, Chievres,
Belgium;
(10) Bar Assistant, Announcement No. NAF-CHI-OCA05, Benelux, NAF
Personnel Office;
(11) Food Service Worker, NA-7408-03, Announcement No. NAF-CHI-OCA07,
80th Area Support Group, Director of Community Activities, Lounge
Division, Building 7, Brussels, Belgium;
(12) Bar Assistant, NA-7405-02, Announcement No. NAF05;
(13) Recreation Aide, NA-0189-01, Announcement No. NAF01, Benelux NAF
Personnel Office; and
(14) Food Service Worker, NA-7408-03, Announcement No. NAF-CHI-OCA07,
254th Base Support Battalion, Director of Community Activities, Bowling
Center, Schinnen, Netherlands.
The agency dismissed the complaint on the grounds of untimely EEO
Counselor contact. The agency also dismissed claims d. (3) - (4) and
e. (8) through (14) for failure to state a claim.
Regarding claims a. (1) - (3), the agency found that complainant applied
for the subject positions between July and August 2001. The agency also
found that according to complainant, he contacted the agency's Darmstadt
NAF Personnel Office several times after submitting his applications
between July and August 2001, but never received a response regarding the
status of his applications. The agency determined that complainant did
not contact an EEO Counselor until August 5, 2002, and that complainant
had a reasonable suspicion of discrimination of his non-selections more
than 45 days before initiating contact for claims a. (1)-(3).
Regarding claim b.(1), the agency noted that during EEO counseling,
complainant stated that he received a written notification informing
him that the subject position had been cancelled on August 10, 2001.
Regarding claims b.(2) through (6), the agency noted that during
EEO counseling, complainant claimed that on August 31, 2001, he was
informed by a Hanau NAF Personnel Office member that his applications
for the subject positions were lost; and that in September 2001, he
resubmitted applications for the subject positions and that at the
end of September 2001, he was informed that his applications could not
be located. The agency found that complainant's initial EEO Counselor
contact occurred on August 5, 2002, and that complainant had a reasonable
suspicion of unlawful employment discrimination more than 45 days before
initiating contact for claims b. (1)-(6).
Regarding claims c. (1) and (2), the agency determined that complainant
suspected discrimination on or about February 14, 2002, when he received
letters notifying him that the two subject positions had been cancelled.
Regarding claim c.(3), the agency noted that during the initial EEO
contact, complainant stated that he was referred for the subject
position but that another candidate was selected on April 24, 2002.
Regarding claim c.(4), the agency noted that complainant stated he
was referred for the subject position but that another candidate was
selected on April 26, 2002. The agency found that complainant's initial
EEO Counselor contact occurred on August 5, 2002, and that complainant
had a reasonable suspicion of discrimination more than 45 days before
initiating contact for claims c. (1)-(4).
Regarding claim d. (1), the agency noted that during EEO counseling,
complainant stated that he was informed by letter dated September 14,
2001, that he was not referred for the subject position and that a
Military Spouse Preference candidate was selected. Regarding claim
d.(2), the agency noted during EEO counseling, complainant stated that
he was referred for the subject position but declined an interview in
September 2001, because it was a flexible schedule position. Regarding
claims d.(3) and (4), the agency noted that during EEO Counseling,
complainant provided two letters dated September 4 and September 7,
2001, respectively, notifying him that his applications for the subject
positions were not being considered as his applications indicated interest
in only regular full-time and part-time positions. The agency found
that complainant's initial EEO Counselor contact occurred on August 5,
2002, and that complainant had a reasonable suspicion of discrimination
more than 45 days before initiating contact for claims d. (1)-(4).
Furthermore, the agency also dismissed claims d. (3) and (4), for failure
to state a claim, finding that complainant failed to establish that he
suffered a harm or loss regarding a term, condition, or privilege of
his employment.
Regarding claims e. (1) and (2), the agency noted that during EEO
counseling, complainant stated that by letters dated September 6 and
17, 2001, respectively, he was informed that he was referred but not
selected for the subject positions. Regarding claims e.(3) and (4),
the agency noted that during EEO counseling, complainant stated that
by letter dated January 10, 2002, he was informed that he was found
not qualified for the subject positions. Regarding claims e.(5) and
(6), the agency noted that during EEO counseling, complainant stated
that by letter dated April 22, 2002, he was found not qualified for
the subject positions. Regarding claim e.(7), the agency noted that
complainant stated that by letter dated May 7, 2002, he was informed
that he was referred but not selected for the subject position.
Regarding claims e. (8)-(10), complainant stated that he was offered but
declined the subject flexible schedule positions on September 13, 2001.
Regarding claim e.(11), the agency noted that complainant stated that
he was offered but declined the subject flexible schedule position
in August 2001. Regarding claims e. (12) and (13), the agency noted
that complainant was offered but declined the subject flexible schedule
positions in April 2002. Regarding claim e.(14), the agency noted that
complainant stated he was offered the subject regular part-time position
but declined it on June 18, 2002, because he had already made plans to
return to the United States and had sold his car. The agency determined
that complainant did not contact an EEO Counselor until August 5, 2002,
and that complainant had a reasonable suspicion of discrimination more
than 45 days before initiating contact for claims e. (1)-(14).
Furthermore, the agency also dismissed claims e.(8)-(14) for failure
to state a claim, finding that complainant had not established that he
was an aggrieved employee. Specifically, complainant was offered the
subject positions but declined to accept the appointments.
On appeal, complainant contends that his EEO contact was timely.
Complainant contends that he contacted the EEO office in August/September
2001, concerning a matter that he had with the agency's employment
officials. Complainant further contends that during his meeting with the
EEO Official, he was informed that he would have to go to each branch
area EEO Office, filing separate allegations myself, as her primary
responsibility was only with the 415th Base Battalion. As a result,
complainant decided to contact his Congresswoman, the American Civil
Liberties Union and other agencies from November 2001 to February 2002,
concerning his claims of discrimination.
In response, the agency contends that complainant obtained information on
how to initiate EEO contact from an EEO Officer on September 10, 2001,
and that complainant contacted his Congresswoman's office in May 2002.
In support of its argument, the agency submits an affidavit from the
EEO Officer wherein she states that she advised complainant of the time
limits for initiating contact with an EEO Counselor and the information
he should bring to the Counselor. The EEO Officer further states that
complainant had no further contact with the 415th EEO Office until August
5, 2002, concerning his numerous non-selections.
Claims e. (8) - (14)
The regulation set forth at 29 C.F.R. § 1614.107(a)(1) provides, in
relevant part, that an agency shall dismiss a complaint that fails to
state a claim. An agency shall accept a complaint from any aggrieved
employee or applicant for employment who believes that he or she has been
discriminated against by that agency because of race, color, religion,
sex, national origin, age or disabling condition. 29 C.F.R. §§ 1614.103,
.106(a). The Commission's federal 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).
With respect to claims e. (8) - (14), complainant has not established
that the alleged incidents identified therein resulted in a personal loss
or harm relating to a term, condition, or privilege of his employment.
Specifically, we find that the alleged incidents did not result in
an adverse action because the record supports a determination that
complainant was offered but declined seven employment offers for the
positions identified in these claims. Therefore, we find that the
agency properly dismissed claims e. (8) through (14) for failure to
state a claim.
Claims a. (1)-(3), b. (1)-(6), c. (1)-(4), d. (1)-(4) and e. (1)-(7)
EEOC Regulation 29 C.F.R. § 1614.105(a)(1) requires that complaints of
discrimination should be brought to the attention of the Equal Employment
Opportunity Counselor within forty-five (45) days of the date of the
matter alleged to be discriminatory or, in the case of a personnel
action, within forty-five (45) days of the effective date of the action.
The Commission has adopted a "reasonable suspicion" standard (as opposed
to a "supportive facts" standard) to determine when the forty-five (45)
day limitation period is triggered. See Howard v. Department of the Navy,
EEOC Request No. 05970852 (February 11, 1999). Thus, the time limitation
is not triggered until a complainant reasonably suspects discrimination,
but before all the facts that support a charge of discrimination have
become apparent.
EEOC Regulations provide that the agency or the Commission shall extend
the time limits when the individual shows that he was not notified of the
time limits and was not otherwise aware of them, that he did not know
and reasonably should not have known that the discriminatory matter or
personnel action occurred, that despite due diligence he was prevented
by circumstances beyond his control from contacting the Counselor within
the time limits, or for other reasons considered sufficient by the agency
or the Commission.
The record supports a determination that complainant had, or should have
had a reasonable suspicion of unlawful employment discrimination from July
2001 to May 2002, concerning his non-selections. Specifically, we find
that the record reveals that complainant first initiated EEO Counselor
contact on September 10, 2001, concerning his non-selections. The record
further reveals that after the EEO Counselor informed complainant that she
needed additional information concerning his non-selections, complainant
stated that he needed more time to decide whether or not to proceed with
the EEO process. We note that complainant, instead, again contacted
an EEO Counselor on August 5, 2002, concerning his non-selections,
and started a new EEO counseling process. Based on the evidence of the
record, we find that complainant abandoned his first contact with the EEO
Counselor on September 10, 2001. The Commission has held that in order
to establish EEO Counselor contact, an individual must contact an agency
official logically connected to the EEO process and exhibit an intent
to begin the EEO process. Allen v. USPS, EEOC Request No. 05950933
(July 8, 1996). Complainant's re-initiation of EEO Counselor contact,
on August 5, 2002, is beyond the forty-five (45) day limitation period.
On appeal, complainant has presented no persuasive arguments or evidence
warranting an extension of the time limit for initiating EEO Counselor
contact. Therefore, we find that the agency properly dismissed claims
a. (1)-(3), b. (1)-(6), c. (1)-(4), d. (1)-(4) and e. (1)-(7) for untimely
Counselor contact.
Accordingly, the agency's dismissal of the complaint was proper and
is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
The Commission may, in its discretion, reconsider the decision in this
case if the complainant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. The appellate decision involved a clearly erroneous interpretation
of material fact or law; or
2. The appellate decision will have a substantial impact on the policies,
practices, or operations of the agency.
Requests to reconsider, with supporting statement or brief, must be filed
with the Office of Federal Operations (OFO) within thirty (30) calendar
days of receipt of this decision or within twenty (20) calendar days of
receipt of another party's timely request for reconsideration. See 29
C.F.R. § 1614.405; Equal Employment Opportunity Management Directive for
29 C.F.R. Part 1614 (EEO MD-110), 9-18 (November 9, 1999). All requests
and arguments must be submitted to the Director, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. In the absence of a legible postmark, the
request to reconsider shall be deemed timely filed if it is received by
mail within five days of the expiration of the applicable filing period.
See 29 C.F.R. § 1614.604. The request or opposition must also include
proof of service on the other party.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely, unless extenuating circumstances
prevented the timely filing of the request. Any supporting documentation
must be submitted with your request for reconsideration. The Commission
will consider requests for reconsideration filed after the deadline only
in very limited circumstances. See 29 C.F.R. § 1614.604(c).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S0900)
You have the right to file a civil action in an appropriate United States
District Court within ninety (90) calendar days from the date that you
receive this decision. If you file a civil action, you must name as
the defendant in the complaint the person who is the official agency head
or department head, identifying that person by his or her full name and
official title. Failure to do so may result in the dismissal of your
case in court. "Agency" or "department" means the national organization,
and not the local office, facility or department in which you work. If you
file a request to reconsider and also file a civil action, filing a civil
action will terminate the administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z1199)
If you decide to file a civil action, and if you do not have or cannot
afford the services of an attorney, you may request that the Court appoint
an attorney to represent you and that the Court permit you to file the
action without payment of fees, costs, or other security. See Title VII
of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq.;
the Rehabilitation Act of 1973, as amended, 29 U.S.C. §§ 791, 794(c).
The grant or denial of the request is within the sole discretion of
the Court. Filing a request for an attorney does not extend your time
in which to file a civil action. Both the request and the civil action
must be filed within the time limits as stated in the paragraph above
("Right to File A Civil Action").
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
June 3, 2004
__________________
Date
1 The record reflects that complainant
subsequently withdrew reprisal as a basis.
| [
"Diaz v. Department of the Air Force, EEOC Request No. 05931049 (April 21, 1994)",
"Howard v. Department of the Navy, EEOC Request No. 05970852 (February 11, 1999)",
"Allen v. USPS, EEOC Request No. 05950933 (July 8, 1996)",
"29 C.F.R. § 1614.107(a)",
"29 C.F.R. § 1614.105(a)",
"29 C.F.R. § 1614.405",
"... | [
-0.07094162702560425,
0.057274337857961655,
0.002574408194050193,
0.004711318761110306,
-0.003989433869719505,
0.042986609041690826,
0.021495172753930092,
-0.037092018872499466,
-0.022718319669365883,
0.021459363400936127,
0.006000372115522623,
-0.031210122630000114,
-0.0033481211867183447,
... |
103 | https://www.eeoc.gov/sites/default/files/decisions/2020_12_07/2020003416.pdf | 2020003416.pdf | PDF | application/pdf | 16,510 | Coleen M,1 Complainant, v. Ryan D. McCarthy, Secretary, Department of the Army, Agency. | March 30, 2020 | Appeal Number: 2020003416
Background:
During the period at issue, Complainant worked as a Cartographer, 1350, GS 11 at the Agency’s
Army Corps of Engineers in the Engineering and Construction Division, Geospatial Management Division in Tulsa, Oklahoma. On February 5, 2020,
2 Complainant initiated EEO Counselor contact. Informal efforts at
resolution were not successful.
1 This case has b een randomly assigned a pseudonym which will replace Complainant’s name
when the decision is published to non-parties and the Commission’s website.
2 We note that the Agency’s final decision reflects that Complainant initiated EEO Counselor
contact on February 10, 2020, and the formal complaint indicates that Complainant initiated
EEO Counselor contact on February 6, 2020. However, our review of the EEO Counselor’s report reflects that Complainant initiated EEO Counselor contact on February 5, 2020 and Complainant completed her pre-complaint intake interview on February 10, 2020.
On March 10, 2020, Complainant filed the instant formal EEO complaint claiming that the
Agency discriminated against her based on sex, disability , and in reprisal for prior protected EEO
activity when:
1. on or about June 8, 2018, Complainant’s supervisor (“S1”) denied her verbal
request for telework; and
2. on or about June 8, 2018, S1 refused to sign the CA -7 Form, or worker’s
compensation application, within five business days, which delayed the
application approval.
In its March 30, 2020 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 Febru ary 5, 2020, which it found to be
beyond the 45- day limitation period.
The instant appeal followed. On appeal, Complainant argues , in pertinent part, that a psychiatric illness prevented her from
timely contacting an EEO Counselor, and in turn, prevented her from timely filing her formal complaint. Complainant asserts that on February 16, 2018, she was diagnosed with Post
Traumatic Stress Disorder (“PTSD”), major depressive disorder, and anxiety disorder. Complainant explains that her diagnoses occurred after she returned home in February 2018,
after being deployed in Puerto Rico where she suffered a series of traumatic incidents
4 as she
participated in the hurricane relief efforts on the island. Complai nant explains that her illness has
a “direct, negative impact on her memory, thinking, reading comprehension, attention span, writing, and other cognitive abilities.” Consequently, Complainant asserts that mental incapacity
has been and still is a problem for her and interfered with her ability to meet the required time
limits for filings. Complainant also indicates that while the Agency may have displayed EEO
posters at the office, she likely would not have remembered the posters after she returned to the
office in February 2018 after completing a deployment in Puerto Rico.
3 The Agency further determined that Complainant’s formal complaint was untimely and
indicated that Complainant provided an explanation for the untimely filing. However, the Agency found that the untimeliness of the formal complaint was “moot” given that Complainant untimely contacted the EEO Counselor.
4 Complainant explains that these incidents included a “near death experience while driving”
which ultimately led to Complainant’s return to the United States on February 1, 2018.
Legal Analysis:
the Commission’s website.
2 We note that the Agency’s final decision reflects that Complainant initiated EEO Counselor
contact on February 10, 2020, and the formal complaint indicates that Complainant initiated
EEO Counselor contact on February 6, 2020. However, our review of the EEO Counselor’s report reflects that Complainant initiated EEO Counselor contact on February 5, 2020 and Complainant completed her pre-complaint intake interview on February 10, 2020.
On March 10, 2020, Complainant filed the instant formal EEO complaint claiming that the
Agency discriminated against her based on sex, disability , and in reprisal for prior protected EEO
activity when:
1. on or about June 8, 2018, Complainant’s supervisor (“S1”) denied her verbal
request for telework; and
2. on or about June 8, 2018, S1 refused to sign the CA -7 Form, or worker’s
compensation application, within five business days, which delayed the
application approval.
In its March 30, 2020 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 Febru ary 5, 2020, which it found to be
beyond the 45- day limitation period.
The instant appeal followed. On appeal, Complainant argues , in pertinent part, that a psychiatric illness prevented her from
timely contacting an EEO Counselor, and in turn, prevented her from timely filing her formal complaint. Complainant asserts that on February 16, 2018, she was diagnosed with Post
Traumatic Stress Disorder (“PTSD”), major depressive disorder, and anxiety disorder. Complainant explains that her diagnoses occurred after she returned home in February 2018,
after being deployed in Puerto Rico where she suffered a series of traumatic incidents
4 as she
participated in the hurricane relief efforts on the island. Complai nant explains that her illness has
a “direct, negative impact on her memory, thinking, reading comprehension, attention span, writing, and other cognitive abilities.” Consequently, Complainant asserts that mental incapacity
has been and still is a problem for her and interfered with her ability to meet the required time
limits for filings. Complainant also indicates that while the Agency may have displayed EEO
posters at the office, she likely would not have remembered the posters after she returned to the
office in February 2018 after completing a deployment in Puerto Rico.
3 The Agency further determined that Complainant’s formal complaint was untimely and
indicated that Complainant provided an explanation for the untimely filing. However, the Agency found that the untimeliness of the formal complaint was “moot” given that Complainant untimely contacted the EEO Counselor.
4 Complainant explains that these incidents included a “near death experience while driving”
which ultimately led to Complainant’s return to the United States on February 1, 2018.
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.
Here, the EEO Counselor’s r eport reflects that Complainant initiated EEO contact on February 5,
2020, which is more than 45 days after the two discrete acts at issue.
5 Therefore, Complainant
had 45 days from the date of the June 8, 2018 alleged discriminatory acts , or until July 23, 2018,
to timely contact an EEO Counselor. 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 she did not know and reasonably should not have known that the discriminatory
matter or personnel actio n occurred, that despite due diligence she was prevented by
circumstances beyond his control from contacting the Counselor within the time limits, or for other reasons considered sufficient by the Agency or the Commission. 29 C.F.R.
§ 1614.105(a)(2).
However, Complainant has not presented any persuasive arguments or evidence warranting an extension of the time limit for initiating EEO Counselor contact. Although Complainant asserted
that her psychiatric illness prevented her from timely contacting the EEO Counselor , our review
of the record support s a determination that Complainant’s condition did not have a negative
impact on her memory, thinking, reading comprehension, attention span, writing, and other cognitive abilities.
Specifically, the record r eflects that in March 2018, one month after Complainant was diagnosed
with her psychiatric conditions, Complainant submitted initial and amended requests for Family
and Medical Leave Act (“FMLA leave”) to S1. Also, in March 2018, Complainant hired an attorney to file a breach of contract claim against the person she employed to care for her
animals and house while she was deployed in Puerto Rico. In April 2018, Complainant responded to her worker’s compensation claim from the Department of Labor and indicated that she was attending one -hour weekly meetings counseling sessions.
5 We acknowledge that box 9 on the EEO Counselor’s Report indicates that the alleged
discriminatory actio n occurred on March 26, 2019 and not June 8, 2018. The record reflect s that
Complainant was approved for disability retirement on March 26, 2019. We note that Complainant asserts, on appeal, that her removal for AWOL was the adverse action that prom pted h er filing of the complaint. However, the record reflects that Complainant’s removal
was effective March 15, 2019. As discussed further below, Complainant’s February 5, 2020 EEO Counselor contact would still have been untimely if the discriminatory act at issue had been
her March 15, 2019 removal .
On or about May 21 and 28, 2018 and June 5, 2018, Complainant stated that she notified
management of her need for a reasonab le accommodation , However, management denied her
request to telework. Nevertheless, Complainant states, on appeal, that she notified S1 on June 13, 2018 of her intent to apply for disability retirement. The record further indicates that S1 notified Com plainant on June 8 and 15, 2018, that she had
exhausted her twelve weeks of approved Family Medical Leave Act (“FMLA”) and would be
rendered absent without leave (“AWOL”) if she did not report back to work. The record
supports that Complainant responded to S1 September 21, 2018 and informed him that a return
to her position was not “physically or psychologically possible, for the forecastable future” due
to her medical condition, symptoms, diagnosis, medications, and prognosis. Consequently, S1 issued a Notice of Proposed Removal on January 31, 2019 and Complainant responded to this
notice on February 27, 2019. In pertinent part, Complainant’s response included the following
statement:
I am unable to work solely due to the medical condition for which I a m receiving
treatment. Due to the prognosis, recovery time is indeterminate.
For this reason, there is no need to appeal the notice of proposed removal. The disability requirement option appeals to be the most applicable. The Office of
Personnel Management (OPM) is processing my Disability Retirement
application now.
My only req uest to the COE is to ask Human Resources for assistance with the
retirement option by providing the required Agency forms to OPM at their earliest
convenience. These required forms are listed on the letter I received from OPM
dated July 9, 2018.
On Mar ch 12, 2019, the Agency issued Complainant a Notice of Removal, effective March 15,
2019. We note that the notice provided instructions for appealing her removal. Specifically, t he
notice indicated that if Complainant elected to file an EEO complaint, Co mplainant “must
initiate contact with an Army EEO office within 45 days of the effective date of her removal.”
Although Complainant asserted that , due to her condition, she was not able to fully read the
March 12, 2019 removal letter until November 2019, the record reflect s that Complainant was
able to think, read, and communicate clearly during this period. The record indicates that in
March and April 2019, Complainant submitted a second request to the Department of Labor to
provide a copy of her Decem ber 26, 2018 evaluation; she applied for unemployment benefits ,
she engaged in discussions with the Agency’s benefit center to determine whether she should receive disability benefits or continue receiving worker’s compensation benefits , and she read a
psychiatric evaluation and decided , based on her understanding of the evaluation, to place herself
on a waiting list for an appointment with a psychiatrist in the local area. The record further
reflects that Complainant submitted a FOIA request on November 22, 2019 for all of her personnel records from December 1, 2017 to present.
On appeal, Complainant notes that her federal medical insurance was cancelled on March 16,
2019, due to her removal and “between May 1, 2019 and December 2019, [she] made every
effort to have her medical insurance reinstated.”
Furthermore, Complainant has not provided s ufficient information as to why she did not pursue
the EEO complaint process after she read her removal notice in November 2019. Instead of
contacting an EEO Couns elor as provided in the removal notice , the record reflects that
Complainant filed a discrimination complaint with the Department of Justice (DOJ) and was informed by DOJ, in a letter dated January 10, 2020, that she would need to file her complaint throug h the EEO process. Thereafter, Complainant contacted the EEO Counselor on February
5, 2020. For all the reasons state above, Complainant has not demonstrated that she was either so physically or mentally incapacitated by her psychiatric illness that sh e could not timely contact
an EEO Counselor on or before July 23, 2018. The Commission has consistently held, in cases involving physical or mental health difficulties, that an extension is warranted only where an individual is so incapacitated by his condition that she is unable to meet the regulatory time limits.
We further note that Complainant does not dispute the Agency’s assertion that it displayed the EEO posters containing the EEO filing deadlines. Rather, Complainant indicates that if she had observed the poster prior to her deployment to Puerto Rico, she would not have remembered the poster after her deployment. The Agency’s final decision dismissing the formal complaint for untimely EEO Counselor
contact is AFFIRMED. | Coleen M,1
Complainant,
v.
Ryan D. McCarthy,
Secretary,
Department of the Army,
Agency.
Appeal No. 2020003416
Agency No. ARCETULSA20FEB00472
DECISION
Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC
or Commission) from the Agency's final decision dated March 30, 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. and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq.
BACKGROUND
During the period at issue, Complainant worked as a Cartographer, 1350, GS 11 at the Agency’s
Army Corps of Engineers in the Engineering and Construction Division, Geospatial Management Division in Tulsa, Oklahoma. On February 5, 2020,
2 Complainant initiated EEO Counselor contact. Informal efforts at
resolution were not successful.
1 This case has b een randomly assigned a pseudonym which will replace Complainant’s name
when the decision is published to non-parties and the Commission’s website.
2 We note that the Agency’s final decision reflects that Complainant initiated EEO Counselor
contact on February 10, 2020, and the formal complaint indicates that Complainant initiated
EEO Counselor contact on February 6, 2020. However, our review of the EEO Counselor’s report reflects that Complainant initiated EEO Counselor contact on February 5, 2020 and Complainant completed her pre-complaint intake interview on February 10, 2020.
On March 10, 2020, Complainant filed the instant formal EEO complaint claiming that the
Agency discriminated against her based on sex, disability , and in reprisal for prior protected EEO
activity when:
1. on or about June 8, 2018, Complainant’s supervisor (“S1”) denied her verbal
request for telework; and
2. on or about June 8, 2018, S1 refused to sign the CA -7 Form, or worker’s
compensation application, within five business days, which delayed the
application approval.
In its March 30, 2020 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 Febru ary 5, 2020, which it found to be
beyond the 45- day limitation period.
The instant appeal followed. On appeal, Complainant argues , in pertinent part, that a psychiatric illness prevented her from
timely contacting an EEO Counselor, and in turn, prevented her from timely filing her formal complaint. Complainant asserts that on February 16, 2018, she was diagnosed with Post
Traumatic Stress Disorder (“PTSD”), major depressive disorder, and anxiety disorder. Complainant explains that her diagnoses occurred after she returned home in February 2018,
after being deployed in Puerto Rico where she suffered a series of traumatic incidents
4 as she
participated in the hurricane relief efforts on the island. Complai nant explains that her illness has
a “direct, negative impact on her memory, thinking, reading comprehension, attention span, writing, and other cognitive abilities.” Consequently, Complainant asserts that mental incapacity
has been and still is a problem for her and interfered with her ability to meet the required time
limits for filings. Complainant also indicates that while the Agency may have displayed EEO
posters at the office, she likely would not have remembered the posters after she returned to the
office in February 2018 after completing a deployment in Puerto Rico.
3 The Agency further determined that Complainant’s formal complaint was untimely and
indicated that Complainant provided an explanation for the untimely filing. However, the Agency found that the untimeliness of the formal complaint was “moot” given that Complainant untimely contacted the EEO Counselor.
4 Complainant explains that these incidents included a “near death experience while driving”
which ultimately led to Complainant’s return to the United States on February 1, 2018.
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.
Here, the EEO Counselor’s r eport reflects that Complainant initiated EEO contact on February 5,
2020, which is more than 45 days after the two discrete acts at issue.
5 Therefore, Complainant
had 45 days from the date of the June 8, 2018 alleged discriminatory acts , or until July 23, 2018,
to timely contact an EEO Counselor. 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 she did not know and reasonably should not have known that the discriminatory
matter or personnel actio n occurred, that despite due diligence she was prevented by
circumstances beyond his control from contacting the Counselor within the time limits, or for other reasons considered sufficient by the Agency or the Commission. 29 C.F.R.
§ 1614.105(a)(2).
However, Complainant has not presented any persuasive arguments or evidence warranting an extension of the time limit for initiating EEO Counselor contact. Although Complainant asserted
that her psychiatric illness prevented her from timely contacting the EEO Counselor , our review
of the record support s a determination that Complainant’s condition did not have a negative
impact on her memory, thinking, reading comprehension, attention span, writing, and other cognitive abilities.
Specifically, the record r eflects that in March 2018, one month after Complainant was diagnosed
with her psychiatric conditions, Complainant submitted initial and amended requests for Family
and Medical Leave Act (“FMLA leave”) to S1. Also, in March 2018, Complainant hired an attorney to file a breach of contract claim against the person she employed to care for her
animals and house while she was deployed in Puerto Rico. In April 2018, Complainant responded to her worker’s compensation claim from the Department of Labor and indicated that she was attending one -hour weekly meetings counseling sessions.
5 We acknowledge that box 9 on the EEO Counselor’s Report indicates that the alleged
discriminatory actio n occurred on March 26, 2019 and not June 8, 2018. The record reflect s that
Complainant was approved for disability retirement on March 26, 2019. We note that Complainant asserts, on appeal, that her removal for AWOL was the adverse action that prom pted h er filing of the complaint. However, the record reflects that Complainant’s removal
was effective March 15, 2019. As discussed further below, Complainant’s February 5, 2020 EEO Counselor contact would still have been untimely if the discriminatory act at issue had been
her March 15, 2019 removal .
On or about May 21 and 28, 2018 and June 5, 2018, Complainant stated that she notified
management of her need for a reasonab le accommodation , However, management denied her
request to telework. Nevertheless, Complainant states, on appeal, that she notified S1 on June 13, 2018 of her intent to apply for disability retirement. The record further indicates that S1 notified Com plainant on June 8 and 15, 2018, that she had
exhausted her twelve weeks of approved Family Medical Leave Act (“FMLA”) and would be
rendered absent without leave (“AWOL”) if she did not report back to work. The record
supports that Complainant responded to S1 September 21, 2018 and informed him that a return
to her position was not “physically or psychologically possible, for the forecastable future” due
to her medical condition, symptoms, diagnosis, medications, and prognosis. Consequently, S1 issued a Notice of Proposed Removal on January 31, 2019 and Complainant responded to this
notice on February 27, 2019. In pertinent part, Complainant’s response included the following
statement:
I am unable to work solely due to the medical condition for which I a m receiving
treatment. Due to the prognosis, recovery time is indeterminate.
For this reason, there is no need to appeal the notice of proposed removal. The disability requirement option appeals to be the most applicable. The Office of
Personnel Management (OPM) is processing my Disability Retirement
application now.
My only req uest to the COE is to ask Human Resources for assistance with the
retirement option by providing the required Agency forms to OPM at their earliest
convenience. These required forms are listed on the letter I received from OPM
dated July 9, 2018.
On Mar ch 12, 2019, the Agency issued Complainant a Notice of Removal, effective March 15,
2019. We note that the notice provided instructions for appealing her removal. Specifically, t he
notice indicated that if Complainant elected to file an EEO complaint, Co mplainant “must
initiate contact with an Army EEO office within 45 days of the effective date of her removal.”
Although Complainant asserted that , due to her condition, she was not able to fully read the
March 12, 2019 removal letter until November 2019, the record reflect s that Complainant was
able to think, read, and communicate clearly during this period. The record indicates that in
March and April 2019, Complainant submitted a second request to the Department of Labor to
provide a copy of her Decem ber 26, 2018 evaluation; she applied for unemployment benefits ,
she engaged in discussions with the Agency’s benefit center to determine whether she should receive disability benefits or continue receiving worker’s compensation benefits , and she read a
psychiatric evaluation and decided , based on her understanding of the evaluation, to place herself
on a waiting list for an appointment with a psychiatrist in the local area. The record further
reflects that Complainant submitted a FOIA request on November 22, 2019 for all of her personnel records from December 1, 2017 to present.
On appeal, Complainant notes that her federal medical insurance was cancelled on March 16,
2019, due to her removal and “between May 1, 2019 and December 2019, [she] made every
effort to have her medical insurance reinstated.”
Furthermore, Complainant has not provided s ufficient information as to why she did not pursue
the EEO complaint process after she read her removal notice in November 2019. Instead of
contacting an EEO Couns elor as provided in the removal notice , the record reflects that
Complainant filed a discrimination complaint with the Department of Justice (DOJ) and was informed by DOJ, in a letter dated January 10, 2020, that she would need to file her complaint throug h the EEO process. Thereafter, Complainant contacted the EEO Counselor on February
5, 2020. For all the reasons state above, Complainant has not demonstrated that she was either so physically or mentally incapacitated by her psychiatric illness that sh e could not timely contact
an EEO Counselor on or before July 23, 2018. The Commission has consistently held, in cases involving physical or mental health difficulties, that an extension is warranted only where an individual is so incapacitated by his condition that she is unable to meet the regulatory time limits.
We further note that Complainant does not dispute the Agency’s assertion that it displayed the EEO posters containing the EEO filing deadlines. Rather, Complainant indicates that if she had observed the poster prior to her deployment to Puerto Rico, she would not have remembered the poster after her deployment. The Agency’s final decision dismissing the formal complaint for 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 submits a written request containing arguments or evidence which tend to esta blish
that:
1. The appellate decision involved a clearly erroneous interpretation of material fact
or law; or
2. The appellate decision will have a substantial impact on the policies, practices, or
operations of the Agency.
Requests to reconsider, with supporting statement or brief, must be filed with the Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. A party
shall have twenty (20) calendar days of receipt of another party’s timely request for
reconsideration in which to submit a brief or statement in opposition. See 29 C.F.R. § 1614.405;
Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD -110),
at Chap. 9 § VII.B (Aug. 5, 2015). All requests and arguments must be submitted to the
Director, Office of Federal Operations, Equal Employment Opportunity Commission.
Complainant’s request may be submitted via regular mail to P.O. Box 77960, Washington, DC
20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. In the absence of a
legible postmark, the request to reconsider shall be deemed timely filed if it is received by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. The
agency’s requ est must be submitted in digital format via the EEOC’s Federal Sector EEO Portal
(FedSEP). See 29 C.F.R. § 1614.403(g). The request or opposition must also include proof of
service on the other party.
Failure to file within the time period will result in dismissal of your request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any
supporting documentation must be submitted with your request for reconsideration. The
Commission will consider requests for reconsideration filed after the deadline only in very
limited circumstances. See 29 C.F.R. § 1614.604(c).
COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION (S0610)
You have the right to file a civil action in an appropriate United Stat es 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 pe rson 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 t o 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 y ou. 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 18, 2020
Date | [
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"29 C.F.R. § 1614.403(g)",
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104 | https://www.eeoc.gov/sites/default/files/decisions/2021_01_25/2020003416.pdf | 2020003416.pdf | PDF | application/pdf | 16,510 | Coleen M,1 Complainant, v. Ryan D. McCarthy, Secretary, Department of the Army, Agency. | March 30, 2020 | Appeal Number: 2020003416
Background:
During the period at issue, Complainant worked as a Cartographer, 1350, GS 11 at the Agency’s
Army Corps of Engineers in the Engineering and Construction Division, Geospatial Management Division in Tulsa, Oklahoma. On February 5, 2020,
2 Complainant initiated EEO Counselor contact. Informal efforts at
resolution were not successful.
1 This case has b een randomly assigned a pseudonym which will replace Complainant’s name
when the decision is published to non-parties and the Commission’s website.
2 We note that the Agency’s final decision reflects that Complainant initiated EEO Counselor
contact on February 10, 2020, and the formal complaint indicates that Complainant initiated
EEO Counselor contact on February 6, 2020. However, our review of the EEO Counselor’s report reflects that Complainant initiated EEO Counselor contact on February 5, 2020 and Complainant completed her pre-complaint intake interview on February 10, 2020.
On March 10, 2020, Complainant filed the instant formal EEO complaint claiming that the
Agency discriminated against her based on sex, disability , and in reprisal for prior protected EEO
activity when:
1. on or about June 8, 2018, Complainant’s supervisor (“S1”) denied her verbal
request for telework; and
2. on or about June 8, 2018, S1 refused to sign the CA -7 Form, or worker’s
compensation application, within five business days, which delayed the
application approval.
In its March 30, 2020 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 Febru ary 5, 2020, which it found to be
beyond the 45- day limitation period.
The instant appeal followed. On appeal, Complainant argues , in pertinent part, that a psychiatric illness prevented her from
timely contacting an EEO Counselor, and in turn, prevented her from timely filing her formal complaint. Complainant asserts that on February 16, 2018, she was diagnosed with Post
Traumatic Stress Disorder (“PTSD”), major depressive disorder, and anxiety disorder. Complainant explains that her diagnoses occurred after she returned home in February 2018,
after being deployed in Puerto Rico where she suffered a series of traumatic incidents
4 as she
participated in the hurricane relief efforts on the island. Complai nant explains that her illness has
a “direct, negative impact on her memory, thinking, reading comprehension, attention span, writing, and other cognitive abilities.” Consequently, Complainant asserts that mental incapacity
has been and still is a problem for her and interfered with her ability to meet the required time
limits for filings. Complainant also indicates that while the Agency may have displayed EEO
posters at the office, she likely would not have remembered the posters after she returned to the
office in February 2018 after completing a deployment in Puerto Rico.
3 The Agency further determined that Complainant’s formal complaint was untimely and
indicated that Complainant provided an explanation for the untimely filing. However, the Agency found that the untimeliness of the formal complaint was “moot” given that Complainant untimely contacted the EEO Counselor.
4 Complainant explains that these incidents included a “near death experience while driving”
which ultimately led to Complainant’s return to the United States on February 1, 2018.
Legal Analysis:
the Commission’s website.
2 We note that the Agency’s final decision reflects that Complainant initiated EEO Counselor
contact on February 10, 2020, and the formal complaint indicates that Complainant initiated
EEO Counselor contact on February 6, 2020. However, our review of the EEO Counselor’s report reflects that Complainant initiated EEO Counselor contact on February 5, 2020 and Complainant completed her pre-complaint intake interview on February 10, 2020.
On March 10, 2020, Complainant filed the instant formal EEO complaint claiming that the
Agency discriminated against her based on sex, disability , and in reprisal for prior protected EEO
activity when:
1. on or about June 8, 2018, Complainant’s supervisor (“S1”) denied her verbal
request for telework; and
2. on or about June 8, 2018, S1 refused to sign the CA -7 Form, or worker’s
compensation application, within five business days, which delayed the
application approval.
In its March 30, 2020 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 Febru ary 5, 2020, which it found to be
beyond the 45- day limitation period.
The instant appeal followed. On appeal, Complainant argues , in pertinent part, that a psychiatric illness prevented her from
timely contacting an EEO Counselor, and in turn, prevented her from timely filing her formal complaint. Complainant asserts that on February 16, 2018, she was diagnosed with Post
Traumatic Stress Disorder (“PTSD”), major depressive disorder, and anxiety disorder. Complainant explains that her diagnoses occurred after she returned home in February 2018,
after being deployed in Puerto Rico where she suffered a series of traumatic incidents
4 as she
participated in the hurricane relief efforts on the island. Complai nant explains that her illness has
a “direct, negative impact on her memory, thinking, reading comprehension, attention span, writing, and other cognitive abilities.” Consequently, Complainant asserts that mental incapacity
has been and still is a problem for her and interfered with her ability to meet the required time
limits for filings. Complainant also indicates that while the Agency may have displayed EEO
posters at the office, she likely would not have remembered the posters after she returned to the
office in February 2018 after completing a deployment in Puerto Rico.
3 The Agency further determined that Complainant’s formal complaint was untimely and
indicated that Complainant provided an explanation for the untimely filing. However, the Agency found that the untimeliness of the formal complaint was “moot” given that Complainant untimely contacted the EEO Counselor.
4 Complainant explains that these incidents included a “near death experience while driving”
which ultimately led to Complainant’s return to the United States on February 1, 2018.
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.
Here, the EEO Counselor’s r eport reflects that Complainant initiated EEO contact on February 5,
2020, which is more than 45 days after the two discrete acts at issue.
5 Therefore, Complainant
had 45 days from the date of the June 8, 2018 alleged discriminatory acts , or until July 23, 2018,
to timely contact an EEO Counselor. 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 she did not know and reasonably should not have known that the discriminatory
matter or personnel actio n occurred, that despite due diligence she was prevented by
circumstances beyond his control from contacting the Counselor within the time limits, or for other reasons considered sufficient by the Agency or the Commission. 29 C.F.R.
§ 1614.105(a)(2).
However, Complainant has not presented any persuasive arguments or evidence warranting an extension of the time limit for initiating EEO Counselor contact. Although Complainant asserted
that her psychiatric illness prevented her from timely contacting the EEO Counselor , our review
of the record support s a determination that Complainant’s condition did not have a negative
impact on her memory, thinking, reading comprehension, attention span, writing, and other cognitive abilities.
Specifically, the record r eflects that in March 2018, one month after Complainant was diagnosed
with her psychiatric conditions, Complainant submitted initial and amended requests for Family
and Medical Leave Act (“FMLA leave”) to S1. Also, in March 2018, Complainant hired an attorney to file a breach of contract claim against the person she employed to care for her
animals and house while she was deployed in Puerto Rico. In April 2018, Complainant responded to her worker’s compensation claim from the Department of Labor and indicated that she was attending one -hour weekly meetings counseling sessions.
5 We acknowledge that box 9 on the EEO Counselor’s Report indicates that the alleged
discriminatory actio n occurred on March 26, 2019 and not June 8, 2018. The record reflect s that
Complainant was approved for disability retirement on March 26, 2019. We note that Complainant asserts, on appeal, that her removal for AWOL was the adverse action that prom pted h er filing of the complaint. However, the record reflects that Complainant’s removal
was effective March 15, 2019. As discussed further below, Complainant’s February 5, 2020 EEO Counselor contact would still have been untimely if the discriminatory act at issue had been
her March 15, 2019 removal .
On or about May 21 and 28, 2018 and June 5, 2018, Complainant stated that she notified
management of her need for a reasonab le accommodation , However, management denied her
request to telework. Nevertheless, Complainant states, on appeal, that she notified S1 on June 13, 2018 of her intent to apply for disability retirement. The record further indicates that S1 notified Com plainant on June 8 and 15, 2018, that she had
exhausted her twelve weeks of approved Family Medical Leave Act (“FMLA”) and would be
rendered absent without leave (“AWOL”) if she did not report back to work. The record
supports that Complainant responded to S1 September 21, 2018 and informed him that a return
to her position was not “physically or psychologically possible, for the forecastable future” due
to her medical condition, symptoms, diagnosis, medications, and prognosis. Consequently, S1 issued a Notice of Proposed Removal on January 31, 2019 and Complainant responded to this
notice on February 27, 2019. In pertinent part, Complainant’s response included the following
statement:
I am unable to work solely due to the medical condition for which I a m receiving
treatment. Due to the prognosis, recovery time is indeterminate.
For this reason, there is no need to appeal the notice of proposed removal. The disability requirement option appeals to be the most applicable. The Office of
Personnel Management (OPM) is processing my Disability Retirement
application now.
My only req uest to the COE is to ask Human Resources for assistance with the
retirement option by providing the required Agency forms to OPM at their earliest
convenience. These required forms are listed on the letter I received from OPM
dated July 9, 2018.
On Mar ch 12, 2019, the Agency issued Complainant a Notice of Removal, effective March 15,
2019. We note that the notice provided instructions for appealing her removal. Specifically, t he
notice indicated that if Complainant elected to file an EEO complaint, Co mplainant “must
initiate contact with an Army EEO office within 45 days of the effective date of her removal.”
Although Complainant asserted that , due to her condition, she was not able to fully read the
March 12, 2019 removal letter until November 2019, the record reflect s that Complainant was
able to think, read, and communicate clearly during this period. The record indicates that in
March and April 2019, Complainant submitted a second request to the Department of Labor to
provide a copy of her Decem ber 26, 2018 evaluation; she applied for unemployment benefits ,
she engaged in discussions with the Agency’s benefit center to determine whether she should receive disability benefits or continue receiving worker’s compensation benefits , and she read a
psychiatric evaluation and decided , based on her understanding of the evaluation, to place herself
on a waiting list for an appointment with a psychiatrist in the local area. The record further
reflects that Complainant submitted a FOIA request on November 22, 2019 for all of her personnel records from December 1, 2017 to present.
On appeal, Complainant notes that her federal medical insurance was cancelled on March 16,
2019, due to her removal and “between May 1, 2019 and December 2019, [she] made every
effort to have her medical insurance reinstated.”
Furthermore, Complainant has not provided s ufficient information as to why she did not pursue
the EEO complaint process after she read her removal notice in November 2019. Instead of
contacting an EEO Couns elor as provided in the removal notice , the record reflects that
Complainant filed a discrimination complaint with the Department of Justice (DOJ) and was informed by DOJ, in a letter dated January 10, 2020, that she would need to file her complaint throug h the EEO process. Thereafter, Complainant contacted the EEO Counselor on February
5, 2020. For all the reasons state above, Complainant has not demonstrated that she was either so physically or mentally incapacitated by her psychiatric illness that sh e could not timely contact
an EEO Counselor on or before July 23, 2018. The Commission has consistently held, in cases involving physical or mental health difficulties, that an extension is warranted only where an individual is so incapacitated by his condition that she is unable to meet the regulatory time limits.
We further note that Complainant does not dispute the Agency’s assertion that it displayed the EEO posters containing the EEO filing deadlines. Rather, Complainant indicates that if she had observed the poster prior to her deployment to Puerto Rico, she would not have remembered the poster after her deployment. The Agency’s final decision dismissing the formal complaint for untimely EEO Counselor
contact is AFFIRMED. | Coleen M,1
Complainant,
v.
Ryan D. McCarthy,
Secretary,
Department of the Army,
Agency.
Appeal No. 2020003416
Agency No. ARCETULSA20FEB00472
DECISION
Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC
or Commission) from the Agency's final decision dated March 30, 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. and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq.
BACKGROUND
During the period at issue, Complainant worked as a Cartographer, 1350, GS 11 at the Agency’s
Army Corps of Engineers in the Engineering and Construction Division, Geospatial Management Division in Tulsa, Oklahoma. On February 5, 2020,
2 Complainant initiated EEO Counselor contact. Informal efforts at
resolution were not successful.
1 This case has b een randomly assigned a pseudonym which will replace Complainant’s name
when the decision is published to non-parties and the Commission’s website.
2 We note that the Agency’s final decision reflects that Complainant initiated EEO Counselor
contact on February 10, 2020, and the formal complaint indicates that Complainant initiated
EEO Counselor contact on February 6, 2020. However, our review of the EEO Counselor’s report reflects that Complainant initiated EEO Counselor contact on February 5, 2020 and Complainant completed her pre-complaint intake interview on February 10, 2020.
On March 10, 2020, Complainant filed the instant formal EEO complaint claiming that the
Agency discriminated against her based on sex, disability , and in reprisal for prior protected EEO
activity when:
1. on or about June 8, 2018, Complainant’s supervisor (“S1”) denied her verbal
request for telework; and
2. on or about June 8, 2018, S1 refused to sign the CA -7 Form, or worker’s
compensation application, within five business days, which delayed the
application approval.
In its March 30, 2020 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 Febru ary 5, 2020, which it found to be
beyond the 45- day limitation period.
The instant appeal followed. On appeal, Complainant argues , in pertinent part, that a psychiatric illness prevented her from
timely contacting an EEO Counselor, and in turn, prevented her from timely filing her formal complaint. Complainant asserts that on February 16, 2018, she was diagnosed with Post
Traumatic Stress Disorder (“PTSD”), major depressive disorder, and anxiety disorder. Complainant explains that her diagnoses occurred after she returned home in February 2018,
after being deployed in Puerto Rico where she suffered a series of traumatic incidents
4 as she
participated in the hurricane relief efforts on the island. Complai nant explains that her illness has
a “direct, negative impact on her memory, thinking, reading comprehension, attention span, writing, and other cognitive abilities.” Consequently, Complainant asserts that mental incapacity
has been and still is a problem for her and interfered with her ability to meet the required time
limits for filings. Complainant also indicates that while the Agency may have displayed EEO
posters at the office, she likely would not have remembered the posters after she returned to the
office in February 2018 after completing a deployment in Puerto Rico.
3 The Agency further determined that Complainant’s formal complaint was untimely and
indicated that Complainant provided an explanation for the untimely filing. However, the Agency found that the untimeliness of the formal complaint was “moot” given that Complainant untimely contacted the EEO Counselor.
4 Complainant explains that these incidents included a “near death experience while driving”
which ultimately led to Complainant’s return to the United States on February 1, 2018.
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.
Here, the EEO Counselor’s r eport reflects that Complainant initiated EEO contact on February 5,
2020, which is more than 45 days after the two discrete acts at issue.
5 Therefore, Complainant
had 45 days from the date of the June 8, 2018 alleged discriminatory acts , or until July 23, 2018,
to timely contact an EEO Counselor. 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 she did not know and reasonably should not have known that the discriminatory
matter or personnel actio n occurred, that despite due diligence she was prevented by
circumstances beyond his control from contacting the Counselor within the time limits, or for other reasons considered sufficient by the Agency or the Commission. 29 C.F.R.
§ 1614.105(a)(2).
However, Complainant has not presented any persuasive arguments or evidence warranting an extension of the time limit for initiating EEO Counselor contact. Although Complainant asserted
that her psychiatric illness prevented her from timely contacting the EEO Counselor , our review
of the record support s a determination that Complainant’s condition did not have a negative
impact on her memory, thinking, reading comprehension, attention span, writing, and other cognitive abilities.
Specifically, the record r eflects that in March 2018, one month after Complainant was diagnosed
with her psychiatric conditions, Complainant submitted initial and amended requests for Family
and Medical Leave Act (“FMLA leave”) to S1. Also, in March 2018, Complainant hired an attorney to file a breach of contract claim against the person she employed to care for her
animals and house while she was deployed in Puerto Rico. In April 2018, Complainant responded to her worker’s compensation claim from the Department of Labor and indicated that she was attending one -hour weekly meetings counseling sessions.
5 We acknowledge that box 9 on the EEO Counselor’s Report indicates that the alleged
discriminatory actio n occurred on March 26, 2019 and not June 8, 2018. The record reflect s that
Complainant was approved for disability retirement on March 26, 2019. We note that Complainant asserts, on appeal, that her removal for AWOL was the adverse action that prom pted h er filing of the complaint. However, the record reflects that Complainant’s removal
was effective March 15, 2019. As discussed further below, Complainant’s February 5, 2020 EEO Counselor contact would still have been untimely if the discriminatory act at issue had been
her March 15, 2019 removal .
On or about May 21 and 28, 2018 and June 5, 2018, Complainant stated that she notified
management of her need for a reasonab le accommodation , However, management denied her
request to telework. Nevertheless, Complainant states, on appeal, that she notified S1 on June 13, 2018 of her intent to apply for disability retirement. The record further indicates that S1 notified Com plainant on June 8 and 15, 2018, that she had
exhausted her twelve weeks of approved Family Medical Leave Act (“FMLA”) and would be
rendered absent without leave (“AWOL”) if she did not report back to work. The record
supports that Complainant responded to S1 September 21, 2018 and informed him that a return
to her position was not “physically or psychologically possible, for the forecastable future” due
to her medical condition, symptoms, diagnosis, medications, and prognosis. Consequently, S1 issued a Notice of Proposed Removal on January 31, 2019 and Complainant responded to this
notice on February 27, 2019. In pertinent part, Complainant’s response included the following
statement:
I am unable to work solely due to the medical condition for which I a m receiving
treatment. Due to the prognosis, recovery time is indeterminate.
For this reason, there is no need to appeal the notice of proposed removal. The disability requirement option appeals to be the most applicable. The Office of
Personnel Management (OPM) is processing my Disability Retirement
application now.
My only req uest to the COE is to ask Human Resources for assistance with the
retirement option by providing the required Agency forms to OPM at their earliest
convenience. These required forms are listed on the letter I received from OPM
dated July 9, 2018.
On Mar ch 12, 2019, the Agency issued Complainant a Notice of Removal, effective March 15,
2019. We note that the notice provided instructions for appealing her removal. Specifically, t he
notice indicated that if Complainant elected to file an EEO complaint, Co mplainant “must
initiate contact with an Army EEO office within 45 days of the effective date of her removal.”
Although Complainant asserted that , due to her condition, she was not able to fully read the
March 12, 2019 removal letter until November 2019, the record reflect s that Complainant was
able to think, read, and communicate clearly during this period. The record indicates that in
March and April 2019, Complainant submitted a second request to the Department of Labor to
provide a copy of her Decem ber 26, 2018 evaluation; she applied for unemployment benefits ,
she engaged in discussions with the Agency’s benefit center to determine whether she should receive disability benefits or continue receiving worker’s compensation benefits , and she read a
psychiatric evaluation and decided , based on her understanding of the evaluation, to place herself
on a waiting list for an appointment with a psychiatrist in the local area. The record further
reflects that Complainant submitted a FOIA request on November 22, 2019 for all of her personnel records from December 1, 2017 to present.
On appeal, Complainant notes that her federal medical insurance was cancelled on March 16,
2019, due to her removal and “between May 1, 2019 and December 2019, [she] made every
effort to have her medical insurance reinstated.”
Furthermore, Complainant has not provided s ufficient information as to why she did not pursue
the EEO complaint process after she read her removal notice in November 2019. Instead of
contacting an EEO Couns elor as provided in the removal notice , the record reflects that
Complainant filed a discrimination complaint with the Department of Justice (DOJ) and was informed by DOJ, in a letter dated January 10, 2020, that she would need to file her complaint throug h the EEO process. Thereafter, Complainant contacted the EEO Counselor on February
5, 2020. For all the reasons state above, Complainant has not demonstrated that she was either so physically or mentally incapacitated by her psychiatric illness that sh e could not timely contact
an EEO Counselor on or before July 23, 2018. The Commission has consistently held, in cases involving physical or mental health difficulties, that an extension is warranted only where an individual is so incapacitated by his condition that she is unable to meet the regulatory time limits.
We further note that Complainant does not dispute the Agency’s assertion that it displayed the EEO posters containing the EEO filing deadlines. Rather, Complainant indicates that if she had observed the poster prior to her deployment to Puerto Rico, she would not have remembered the poster after her deployment. The Agency’s final decision dismissing the formal complaint for 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 submits a written request containing arguments or evidence which tend to esta blish
that:
1. The appellate decision involved a clearly erroneous interpretation of material fact
or law; or
2. The appellate decision will have a substantial impact on the policies, practices, or
operations of the Agency.
Requests to reconsider, with supporting statement or brief, must be filed with the Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. A party
shall have twenty (20) calendar days of receipt of another party’s timely request for
reconsideration in which to submit a brief or statement in opposition. See 29 C.F.R. § 1614.405;
Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD -110),
at Chap. 9 § VII.B (Aug. 5, 2015). All requests and arguments must be submitted to the
Director, Office of Federal Operations, Equal Employment Opportunity Commission.
Complainant’s request may be submitted via regular mail to P.O. Box 77960, Washington, DC
20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. In the absence of a
legible postmark, the request to reconsider shall be deemed timely filed if it is received by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. The
agency’s requ est must be submitted in digital format via the EEOC’s Federal Sector EEO Portal
(FedSEP). See 29 C.F.R. § 1614.403(g). The request or opposition must also include proof of
service on the other party.
Failure to file within the time period will result in dismissal of your request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any
supporting documentation must be submitted with your request for reconsideration. The
Commission will consider requests for reconsideration filed after the deadline only in very
limited circumstances. See 29 C.F.R. § 1614.604(c).
COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION (S0610)
You have the right to file a civil action in an appropriate United Stat es 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 pe rson 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 t o 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 y ou. 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 18, 2020
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105 | https://www.eeoc.gov/sites/default/files/decisions/2021_01_19/2020003416.pdf | 2020003416.pdf | PDF | application/pdf | 16,510 | Coleen M,1 Complainant, v. Ryan D. McCarthy, Secretary, Department of the Army, Agency. | March 30, 2020 | Appeal Number: 2020003416
Background:
During the period at issue, Complainant worked as a Cartographer, 1350, GS 11 at the Agency’s
Army Corps of Engineers in the Engineering and Construction Division, Geospatial Management Division in Tulsa, Oklahoma. On February 5, 2020,
2 Complainant initiated EEO Counselor contact. Informal efforts at
resolution were not successful.
1 This case has b een randomly assigned a pseudonym which will replace Complainant’s name
when the decision is published to non-parties and the Commission’s website.
2 We note that the Agency’s final decision reflects that Complainant initiated EEO Counselor
contact on February 10, 2020, and the formal complaint indicates that Complainant initiated
EEO Counselor contact on February 6, 2020. However, our review of the EEO Counselor’s report reflects that Complainant initiated EEO Counselor contact on February 5, 2020 and Complainant completed her pre-complaint intake interview on February 10, 2020.
On March 10, 2020, Complainant filed the instant formal EEO complaint claiming that the
Agency discriminated against her based on sex, disability , and in reprisal for prior protected EEO
activity when:
1. on or about June 8, 2018, Complainant’s supervisor (“S1”) denied her verbal
request for telework; and
2. on or about June 8, 2018, S1 refused to sign the CA -7 Form, or worker’s
compensation application, within five business days, which delayed the
application approval.
In its March 30, 2020 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 Febru ary 5, 2020, which it found to be
beyond the 45- day limitation period.
The instant appeal followed. On appeal, Complainant argues , in pertinent part, that a psychiatric illness prevented her from
timely contacting an EEO Counselor, and in turn, prevented her from timely filing her formal complaint. Complainant asserts that on February 16, 2018, she was diagnosed with Post
Traumatic Stress Disorder (“PTSD”), major depressive disorder, and anxiety disorder. Complainant explains that her diagnoses occurred after she returned home in February 2018,
after being deployed in Puerto Rico where she suffered a series of traumatic incidents
4 as she
participated in the hurricane relief efforts on the island. Complai nant explains that her illness has
a “direct, negative impact on her memory, thinking, reading comprehension, attention span, writing, and other cognitive abilities.” Consequently, Complainant asserts that mental incapacity
has been and still is a problem for her and interfered with her ability to meet the required time
limits for filings. Complainant also indicates that while the Agency may have displayed EEO
posters at the office, she likely would not have remembered the posters after she returned to the
office in February 2018 after completing a deployment in Puerto Rico.
3 The Agency further determined that Complainant’s formal complaint was untimely and
indicated that Complainant provided an explanation for the untimely filing. However, the Agency found that the untimeliness of the formal complaint was “moot” given that Complainant untimely contacted the EEO Counselor.
4 Complainant explains that these incidents included a “near death experience while driving”
which ultimately led to Complainant’s return to the United States on February 1, 2018.
Legal Analysis:
the Commission’s website.
2 We note that the Agency’s final decision reflects that Complainant initiated EEO Counselor
contact on February 10, 2020, and the formal complaint indicates that Complainant initiated
EEO Counselor contact on February 6, 2020. However, our review of the EEO Counselor’s report reflects that Complainant initiated EEO Counselor contact on February 5, 2020 and Complainant completed her pre-complaint intake interview on February 10, 2020.
On March 10, 2020, Complainant filed the instant formal EEO complaint claiming that the
Agency discriminated against her based on sex, disability , and in reprisal for prior protected EEO
activity when:
1. on or about June 8, 2018, Complainant’s supervisor (“S1”) denied her verbal
request for telework; and
2. on or about June 8, 2018, S1 refused to sign the CA -7 Form, or worker’s
compensation application, within five business days, which delayed the
application approval.
In its March 30, 2020 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 Febru ary 5, 2020, which it found to be
beyond the 45- day limitation period.
The instant appeal followed. On appeal, Complainant argues , in pertinent part, that a psychiatric illness prevented her from
timely contacting an EEO Counselor, and in turn, prevented her from timely filing her formal complaint. Complainant asserts that on February 16, 2018, she was diagnosed with Post
Traumatic Stress Disorder (“PTSD”), major depressive disorder, and anxiety disorder. Complainant explains that her diagnoses occurred after she returned home in February 2018,
after being deployed in Puerto Rico where she suffered a series of traumatic incidents
4 as she
participated in the hurricane relief efforts on the island. Complai nant explains that her illness has
a “direct, negative impact on her memory, thinking, reading comprehension, attention span, writing, and other cognitive abilities.” Consequently, Complainant asserts that mental incapacity
has been and still is a problem for her and interfered with her ability to meet the required time
limits for filings. Complainant also indicates that while the Agency may have displayed EEO
posters at the office, she likely would not have remembered the posters after she returned to the
office in February 2018 after completing a deployment in Puerto Rico.
3 The Agency further determined that Complainant’s formal complaint was untimely and
indicated that Complainant provided an explanation for the untimely filing. However, the Agency found that the untimeliness of the formal complaint was “moot” given that Complainant untimely contacted the EEO Counselor.
4 Complainant explains that these incidents included a “near death experience while driving”
which ultimately led to Complainant’s return to the United States on February 1, 2018.
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.
Here, the EEO Counselor’s r eport reflects that Complainant initiated EEO contact on February 5,
2020, which is more than 45 days after the two discrete acts at issue.
5 Therefore, Complainant
had 45 days from the date of the June 8, 2018 alleged discriminatory acts , or until July 23, 2018,
to timely contact an EEO Counselor. 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 she did not know and reasonably should not have known that the discriminatory
matter or personnel actio n occurred, that despite due diligence she was prevented by
circumstances beyond his control from contacting the Counselor within the time limits, or for other reasons considered sufficient by the Agency or the Commission. 29 C.F.R.
§ 1614.105(a)(2).
However, Complainant has not presented any persuasive arguments or evidence warranting an extension of the time limit for initiating EEO Counselor contact. Although Complainant asserted
that her psychiatric illness prevented her from timely contacting the EEO Counselor , our review
of the record support s a determination that Complainant’s condition did not have a negative
impact on her memory, thinking, reading comprehension, attention span, writing, and other cognitive abilities.
Specifically, the record r eflects that in March 2018, one month after Complainant was diagnosed
with her psychiatric conditions, Complainant submitted initial and amended requests for Family
and Medical Leave Act (“FMLA leave”) to S1. Also, in March 2018, Complainant hired an attorney to file a breach of contract claim against the person she employed to care for her
animals and house while she was deployed in Puerto Rico. In April 2018, Complainant responded to her worker’s compensation claim from the Department of Labor and indicated that she was attending one -hour weekly meetings counseling sessions.
5 We acknowledge that box 9 on the EEO Counselor’s Report indicates that the alleged
discriminatory actio n occurred on March 26, 2019 and not June 8, 2018. The record reflect s that
Complainant was approved for disability retirement on March 26, 2019. We note that Complainant asserts, on appeal, that her removal for AWOL was the adverse action that prom pted h er filing of the complaint. However, the record reflects that Complainant’s removal
was effective March 15, 2019. As discussed further below, Complainant’s February 5, 2020 EEO Counselor contact would still have been untimely if the discriminatory act at issue had been
her March 15, 2019 removal .
On or about May 21 and 28, 2018 and June 5, 2018, Complainant stated that she notified
management of her need for a reasonab le accommodation , However, management denied her
request to telework. Nevertheless, Complainant states, on appeal, that she notified S1 on June 13, 2018 of her intent to apply for disability retirement. The record further indicates that S1 notified Com plainant on June 8 and 15, 2018, that she had
exhausted her twelve weeks of approved Family Medical Leave Act (“FMLA”) and would be
rendered absent without leave (“AWOL”) if she did not report back to work. The record
supports that Complainant responded to S1 September 21, 2018 and informed him that a return
to her position was not “physically or psychologically possible, for the forecastable future” due
to her medical condition, symptoms, diagnosis, medications, and prognosis. Consequently, S1 issued a Notice of Proposed Removal on January 31, 2019 and Complainant responded to this
notice on February 27, 2019. In pertinent part, Complainant’s response included the following
statement:
I am unable to work solely due to the medical condition for which I a m receiving
treatment. Due to the prognosis, recovery time is indeterminate.
For this reason, there is no need to appeal the notice of proposed removal. The disability requirement option appeals to be the most applicable. The Office of
Personnel Management (OPM) is processing my Disability Retirement
application now.
My only req uest to the COE is to ask Human Resources for assistance with the
retirement option by providing the required Agency forms to OPM at their earliest
convenience. These required forms are listed on the letter I received from OPM
dated July 9, 2018.
On Mar ch 12, 2019, the Agency issued Complainant a Notice of Removal, effective March 15,
2019. We note that the notice provided instructions for appealing her removal. Specifically, t he
notice indicated that if Complainant elected to file an EEO complaint, Co mplainant “must
initiate contact with an Army EEO office within 45 days of the effective date of her removal.”
Although Complainant asserted that , due to her condition, she was not able to fully read the
March 12, 2019 removal letter until November 2019, the record reflect s that Complainant was
able to think, read, and communicate clearly during this period. The record indicates that in
March and April 2019, Complainant submitted a second request to the Department of Labor to
provide a copy of her Decem ber 26, 2018 evaluation; she applied for unemployment benefits ,
she engaged in discussions with the Agency’s benefit center to determine whether she should receive disability benefits or continue receiving worker’s compensation benefits , and she read a
psychiatric evaluation and decided , based on her understanding of the evaluation, to place herself
on a waiting list for an appointment with a psychiatrist in the local area. The record further
reflects that Complainant submitted a FOIA request on November 22, 2019 for all of her personnel records from December 1, 2017 to present.
On appeal, Complainant notes that her federal medical insurance was cancelled on March 16,
2019, due to her removal and “between May 1, 2019 and December 2019, [she] made every
effort to have her medical insurance reinstated.”
Furthermore, Complainant has not provided s ufficient information as to why she did not pursue
the EEO complaint process after she read her removal notice in November 2019. Instead of
contacting an EEO Couns elor as provided in the removal notice , the record reflects that
Complainant filed a discrimination complaint with the Department of Justice (DOJ) and was informed by DOJ, in a letter dated January 10, 2020, that she would need to file her complaint throug h the EEO process. Thereafter, Complainant contacted the EEO Counselor on February
5, 2020. For all the reasons state above, Complainant has not demonstrated that she was either so physically or mentally incapacitated by her psychiatric illness that sh e could not timely contact
an EEO Counselor on or before July 23, 2018. The Commission has consistently held, in cases involving physical or mental health difficulties, that an extension is warranted only where an individual is so incapacitated by his condition that she is unable to meet the regulatory time limits.
We further note that Complainant does not dispute the Agency’s assertion that it displayed the EEO posters containing the EEO filing deadlines. Rather, Complainant indicates that if she had observed the poster prior to her deployment to Puerto Rico, she would not have remembered the poster after her deployment. The Agency’s final decision dismissing the formal complaint for untimely EEO Counselor
contact is AFFIRMED. | Coleen M,1
Complainant,
v.
Ryan D. McCarthy,
Secretary,
Department of the Army,
Agency.
Appeal No. 2020003416
Agency No. ARCETULSA20FEB00472
DECISION
Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC
or Commission) from the Agency's final decision dated March 30, 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. and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq.
BACKGROUND
During the period at issue, Complainant worked as a Cartographer, 1350, GS 11 at the Agency’s
Army Corps of Engineers in the Engineering and Construction Division, Geospatial Management Division in Tulsa, Oklahoma. On February 5, 2020,
2 Complainant initiated EEO Counselor contact. Informal efforts at
resolution were not successful.
1 This case has b een randomly assigned a pseudonym which will replace Complainant’s name
when the decision is published to non-parties and the Commission’s website.
2 We note that the Agency’s final decision reflects that Complainant initiated EEO Counselor
contact on February 10, 2020, and the formal complaint indicates that Complainant initiated
EEO Counselor contact on February 6, 2020. However, our review of the EEO Counselor’s report reflects that Complainant initiated EEO Counselor contact on February 5, 2020 and Complainant completed her pre-complaint intake interview on February 10, 2020.
On March 10, 2020, Complainant filed the instant formal EEO complaint claiming that the
Agency discriminated against her based on sex, disability , and in reprisal for prior protected EEO
activity when:
1. on or about June 8, 2018, Complainant’s supervisor (“S1”) denied her verbal
request for telework; and
2. on or about June 8, 2018, S1 refused to sign the CA -7 Form, or worker’s
compensation application, within five business days, which delayed the
application approval.
In its March 30, 2020 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 Febru ary 5, 2020, which it found to be
beyond the 45- day limitation period.
The instant appeal followed. On appeal, Complainant argues , in pertinent part, that a psychiatric illness prevented her from
timely contacting an EEO Counselor, and in turn, prevented her from timely filing her formal complaint. Complainant asserts that on February 16, 2018, she was diagnosed with Post
Traumatic Stress Disorder (“PTSD”), major depressive disorder, and anxiety disorder. Complainant explains that her diagnoses occurred after she returned home in February 2018,
after being deployed in Puerto Rico where she suffered a series of traumatic incidents
4 as she
participated in the hurricane relief efforts on the island. Complai nant explains that her illness has
a “direct, negative impact on her memory, thinking, reading comprehension, attention span, writing, and other cognitive abilities.” Consequently, Complainant asserts that mental incapacity
has been and still is a problem for her and interfered with her ability to meet the required time
limits for filings. Complainant also indicates that while the Agency may have displayed EEO
posters at the office, she likely would not have remembered the posters after she returned to the
office in February 2018 after completing a deployment in Puerto Rico.
3 The Agency further determined that Complainant’s formal complaint was untimely and
indicated that Complainant provided an explanation for the untimely filing. However, the Agency found that the untimeliness of the formal complaint was “moot” given that Complainant untimely contacted the EEO Counselor.
4 Complainant explains that these incidents included a “near death experience while driving”
which ultimately led to Complainant’s return to the United States on February 1, 2018.
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.
Here, the EEO Counselor’s r eport reflects that Complainant initiated EEO contact on February 5,
2020, which is more than 45 days after the two discrete acts at issue.
5 Therefore, Complainant
had 45 days from the date of the June 8, 2018 alleged discriminatory acts , or until July 23, 2018,
to timely contact an EEO Counselor. 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 she did not know and reasonably should not have known that the discriminatory
matter or personnel actio n occurred, that despite due diligence she was prevented by
circumstances beyond his control from contacting the Counselor within the time limits, or for other reasons considered sufficient by the Agency or the Commission. 29 C.F.R.
§ 1614.105(a)(2).
However, Complainant has not presented any persuasive arguments or evidence warranting an extension of the time limit for initiating EEO Counselor contact. Although Complainant asserted
that her psychiatric illness prevented her from timely contacting the EEO Counselor , our review
of the record support s a determination that Complainant’s condition did not have a negative
impact on her memory, thinking, reading comprehension, attention span, writing, and other cognitive abilities.
Specifically, the record r eflects that in March 2018, one month after Complainant was diagnosed
with her psychiatric conditions, Complainant submitted initial and amended requests for Family
and Medical Leave Act (“FMLA leave”) to S1. Also, in March 2018, Complainant hired an attorney to file a breach of contract claim against the person she employed to care for her
animals and house while she was deployed in Puerto Rico. In April 2018, Complainant responded to her worker’s compensation claim from the Department of Labor and indicated that she was attending one -hour weekly meetings counseling sessions.
5 We acknowledge that box 9 on the EEO Counselor’s Report indicates that the alleged
discriminatory actio n occurred on March 26, 2019 and not June 8, 2018. The record reflect s that
Complainant was approved for disability retirement on March 26, 2019. We note that Complainant asserts, on appeal, that her removal for AWOL was the adverse action that prom pted h er filing of the complaint. However, the record reflects that Complainant’s removal
was effective March 15, 2019. As discussed further below, Complainant’s February 5, 2020 EEO Counselor contact would still have been untimely if the discriminatory act at issue had been
her March 15, 2019 removal .
On or about May 21 and 28, 2018 and June 5, 2018, Complainant stated that she notified
management of her need for a reasonab le accommodation , However, management denied her
request to telework. Nevertheless, Complainant states, on appeal, that she notified S1 on June 13, 2018 of her intent to apply for disability retirement. The record further indicates that S1 notified Com plainant on June 8 and 15, 2018, that she had
exhausted her twelve weeks of approved Family Medical Leave Act (“FMLA”) and would be
rendered absent without leave (“AWOL”) if she did not report back to work. The record
supports that Complainant responded to S1 September 21, 2018 and informed him that a return
to her position was not “physically or psychologically possible, for the forecastable future” due
to her medical condition, symptoms, diagnosis, medications, and prognosis. Consequently, S1 issued a Notice of Proposed Removal on January 31, 2019 and Complainant responded to this
notice on February 27, 2019. In pertinent part, Complainant’s response included the following
statement:
I am unable to work solely due to the medical condition for which I a m receiving
treatment. Due to the prognosis, recovery time is indeterminate.
For this reason, there is no need to appeal the notice of proposed removal. The disability requirement option appeals to be the most applicable. The Office of
Personnel Management (OPM) is processing my Disability Retirement
application now.
My only req uest to the COE is to ask Human Resources for assistance with the
retirement option by providing the required Agency forms to OPM at their earliest
convenience. These required forms are listed on the letter I received from OPM
dated July 9, 2018.
On Mar ch 12, 2019, the Agency issued Complainant a Notice of Removal, effective March 15,
2019. We note that the notice provided instructions for appealing her removal. Specifically, t he
notice indicated that if Complainant elected to file an EEO complaint, Co mplainant “must
initiate contact with an Army EEO office within 45 days of the effective date of her removal.”
Although Complainant asserted that , due to her condition, she was not able to fully read the
March 12, 2019 removal letter until November 2019, the record reflect s that Complainant was
able to think, read, and communicate clearly during this period. The record indicates that in
March and April 2019, Complainant submitted a second request to the Department of Labor to
provide a copy of her Decem ber 26, 2018 evaluation; she applied for unemployment benefits ,
she engaged in discussions with the Agency’s benefit center to determine whether she should receive disability benefits or continue receiving worker’s compensation benefits , and she read a
psychiatric evaluation and decided , based on her understanding of the evaluation, to place herself
on a waiting list for an appointment with a psychiatrist in the local area. The record further
reflects that Complainant submitted a FOIA request on November 22, 2019 for all of her personnel records from December 1, 2017 to present.
On appeal, Complainant notes that her federal medical insurance was cancelled on March 16,
2019, due to her removal and “between May 1, 2019 and December 2019, [she] made every
effort to have her medical insurance reinstated.”
Furthermore, Complainant has not provided s ufficient information as to why she did not pursue
the EEO complaint process after she read her removal notice in November 2019. Instead of
contacting an EEO Couns elor as provided in the removal notice , the record reflects that
Complainant filed a discrimination complaint with the Department of Justice (DOJ) and was informed by DOJ, in a letter dated January 10, 2020, that she would need to file her complaint throug h the EEO process. Thereafter, Complainant contacted the EEO Counselor on February
5, 2020. For all the reasons state above, Complainant has not demonstrated that she was either so physically or mentally incapacitated by her psychiatric illness that sh e could not timely contact
an EEO Counselor on or before July 23, 2018. The Commission has consistently held, in cases involving physical or mental health difficulties, that an extension is warranted only where an individual is so incapacitated by his condition that she is unable to meet the regulatory time limits.
We further note that Complainant does not dispute the Agency’s assertion that it displayed the EEO posters containing the EEO filing deadlines. Rather, Complainant indicates that if she had observed the poster prior to her deployment to Puerto Rico, she would not have remembered the poster after her deployment. The Agency’s final decision dismissing the formal complaint for 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 submits a written request containing arguments or evidence which tend to esta blish
that:
1. The appellate decision involved a clearly erroneous interpretation of material fact
or law; or
2. The appellate decision will have a substantial impact on the policies, practices, or
operations of the Agency.
Requests to reconsider, with supporting statement or brief, must be filed with the Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. A party
shall have twenty (20) calendar days of receipt of another party’s timely request for
reconsideration in which to submit a brief or statement in opposition. See 29 C.F.R. § 1614.405;
Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD -110),
at Chap. 9 § VII.B (Aug. 5, 2015). All requests and arguments must be submitted to the
Director, Office of Federal Operations, Equal Employment Opportunity Commission.
Complainant’s request may be submitted via regular mail to P.O. Box 77960, Washington, DC
20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. In the absence of a
legible postmark, the request to reconsider shall be deemed timely filed if it is received by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. The
agency’s requ est must be submitted in digital format via the EEOC’s Federal Sector EEO Portal
(FedSEP). See 29 C.F.R. § 1614.403(g). The request or opposition must also include proof of
service on the other party.
Failure to file within the time period will result in dismissal of your request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any
supporting documentation must be submitted with your request for reconsideration. The
Commission will consider requests for reconsideration filed after the deadline only in very
limited circumstances. See 29 C.F.R. § 1614.604(c).
COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION (S0610)
You have the right to file a civil action in an appropriate United Stat es 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 pe rson 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 t o 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 y ou. 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 18, 2020
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106 | https://www.eeoc.gov/sites/default/files/migrated_files/decisions/01a60243.txt | 01a60243.txt | TXT | text/plain | 18,339 | Shari Kamm v. National Aeronautics and Space Administration 01A60243 March 29, 2006 . Shari Kamm, Complainant, v. Michael Griffin, Administrator, National Aeronautics and Space Administration, Agency. | March 29, 2006 | Appeal Number: 01A60243
Case Facts:
Complainant filed a timely appeal with this Commission from the final
agency decision dated September 7, 2005, dismissing her formal EEO
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.
On April 18, 2005, complainant filed a formal complaint, claiming that
she was subjected to unlawful employment discrimination on the basis
of disability.
On September 7, 2005, the agency issued a final decision. Therein,
the agency determined that complainant's complaint was comprised of the
following claim:
[Complainant was] denied a reasonable accommodation for [her] disability
(Adult Attention Deficit Disorder) between May 2004 and September 2004,
which contributed to [her] receiving an official reprimand for rude and
obstructive behavior on November 17, 2004.<1>
The agency dismissed complainant's complaint on the grounds of untimely
EEO Counselor contact. Specifically, the agency found that complainant
initiated EEO Counselor contact on January 6, 2005. The agency stated
that to the extent complainant's complaint is comprised of the claim
of a reasonable accommodation denial, complainant acknowledged receipt
of the requested accommodation in September 2004. The agency asserted
that complainant's EEO contact on January 6, 2005, was outside of the
applicable time period. The agency further found that to the extent
complainant's complaint was comprised of a claim relating to receipt of
a reprimand on November 17, 2004, complainant's initial EEO Counselor
contact on January 6, 2005, was likewise untimely.
The agency also dismissed complainant's complaint on the alternative
grounds of mootness. Specifically, the agency stated that [b]y providing
[complainant] with an accommodation in the form of an office in September
2004, the effects of the prior alleged discriminatory acts have been
eradicated, and there is no likelihood of a recurrence.
On appeal, complainant, through her attorney, asserts that the agency's
dismissal of her complaint is improper. Specifically, complainant's
attorney (CA) asserts that on November 30, 2004, she filed an EEO
complaint as part of her NASA adverse action grievance. CA further
states that the Acting Director of the Human Resources Management
Division (HR1) advised [complainant] to bifurcate her due process
grievance from her EEO grievance and she instructed [complainant] to
resubmit them separately, which [complainant] did on December 23, 2004,
and January 6, 2005, respectively.
CA further asserts that this case is similar to Oest v. Department
of Justice, EEOC Appeal No. 01A53204 (September 13, 2005), in
which the Commission reversed the agency's final action dismissing
complainant's complaint on the grounds of untimely EEO Counselor contact.
Specifically, complainant asserts that [s]imilar to Oest, complainant
filed her complaint of discrimination jointly with another complaint
and was instructed to refile her complaint of discrimination with the
EEO office. However, the procedural delay that [the agency] imposed
by requiring bifurcation shortened [complainant's] time for filing
by a full 18 calendar days from the date of the discriminatory action.
This delay was beyond [complainant's] control, and it should be a reason
considered sufficient by the agency or the Commission' for extending
the 45-day time limit.
CA also asserts that the agency's dismissal of complainant's complaint
on the grounds that it has been rendered moot is improper. CA states
that the official reprimand remains in complainant's personnel file
and complainant has incurred legal fees in attempting to expunge the
letter of reprimand. CA further states that [f]ollowing a meeting
with [complainant] and her attorney, NASA Assistant Administrator for
External Relations...agreed to expunge the letter from [complainant's]
file but this will not occur before January 2006.
As a threshold matter, the Commission finds that the crux of complainant's
complaint is that she was subjected to discrimination when she received a
letter of reprimand. The record contains a copy of the EEO Counselor's
Report. Therein, the EEO Counselor expressly states that complainant's
claim of discrimination is that she was discriminated against based
on her disability...when she was issued a letter of reprimand ...She
said that the delay in granting her request for reasonable accommodation
contributed to the workplace conflict that results in her being unfairly
subjected to ...[the] subsequent reprimand by her supervisor.
In her formal complaint, complainant states in pertinent part, that the
resulting delay [in providing her with a reasonable accommodation] was
a contributing factor in any of my actions that...led [the agency], on
November 17, 2004, to issue an official reprimand for rude and obstructive
behavior. I contend that had [the agency] accommodated my disability in
May 2004, ...[the] adverse action would not have been taken against me.
Finally, on appeal, CA states in his brief that the adverse personnel
action in this case, issuance of the letter of reprimand, occurred on
November 17, 2004. Thus, we find that complainant's references to a
delay in the agency providing her with a reasonable accommodation are
background information in support of her claim that she was subjected
to discrimination when she received a letter of reprimand.
Dismissal on the Grounds of Mootness
The agency improperly dismissed complainant's complaint on the grounds
that it has been rendered moot. The regulation set forth at 29 C.F.R. §
1614.107(a)(5) provides for the dismissal of a complaint when the issues
raised therein are moot. To determine whether the issues raised in
complainant's complaint are moot, the factfinder must ascertain whether
(1) it can be said with assurance that there is no reasonable expectation
that the alleged violation will recur; and (2) interim relief or events
have completely and irrevocably eradicated the effects of the alleged
discrimination. See County of Los Angeles v. Davis, 440 U.S. 625, 631
(1979); Kuo v. Department of the Navy, EEOC Request No. 05970343 (July
10, 1998). When such circumstances exist, no relief is available and
no need for a determination of the rights of the parties is presented.
In the instant matter, the Commission notes that CA, in his brief in
support of complainant's appeal, dated October 19, 2005, asserts that
the agency agreed to expunge the letter of reprimand from complainant's
personnel file, but that this action would not occur before January 2006.
However, the record is devoid of evidence that the agency actually
removed the letter of reprimand from complainant's file. Based on these
circumstances, we find that the record does not reflect that interim
relief or events have completely and irrevocably eradicated the effects
of the alleged discrimination.
Dismissal for Untimely EEO Counselor Contact
Legal Analysis:
the Commission reversed the agency's final action dismissing
complainant's complaint on the grounds of untimely EEO Counselor contact.
Specifically, complainant asserts that [s]imilar to Oest, complainant
filed her complaint of discrimination jointly with another complaint
and was instructed to refile her complaint of discrimination with the
EEO office. However, the procedural delay that [the agency] imposed
by requiring bifurcation shortened [complainant's] time for filing
by a full 18 calendar days from the date of the discriminatory action.
This delay was beyond [complainant's] control, and it should be a reason
considered sufficient by the agency or the Commission' for extending
the 45-day time limit.
CA also asserts that the agency's dismissal of complainant's complaint
on the grounds that it has been rendered moot is improper. CA states
that the official reprimand remains in complainant's personnel file
and complainant has incurred legal fees in attempting to expunge the
letter of reprimand. CA further states that [f]ollowing a meeting
with [complainant] and her attorney, NASA Assistant Administrator for
External Relations...agreed to expunge the letter from [complainant's]
file but this will not occur before January 2006.
As a threshold matter, the Commission finds that the crux of complainant's
complaint is that she was subjected to discrimination when she received a
letter of reprimand. The record contains a copy of the EEO Counselor's
Report. Therein, the EEO Counselor expressly states that complainant's
claim of discrimination is that she was discriminated against based
on her disability...when she was issued a letter of reprimand ...She
said that the delay in granting her request for reasonable accommodation
contributed to the workplace conflict that results in her being unfairly
subjected to ...[the] subsequent reprimand by her supervisor.
In her formal complaint, complainant states in pertinent part, that the
resulting delay [in providing her with a reasonable accommodation] was
a contributing factor in any of my actions that...led [the agency], on
November 17, 2004, to issue an official reprimand for rude and obstructive
behavior. I contend that had [the agency] accommodated my disability in
May 2004, ...[the] adverse action would not have been taken against me.
Finally, on appeal, CA states in his brief that the adverse personnel
action in this case, issuance of the letter of reprimand, occurred on
November 17, 2004. Thus, we find that complainant's references to a
delay in the agency providing her with a reasonable accommodation are
background information in support of her claim that she was subjected
to discrimination when she received a letter of reprimand.
Dismissal on the Grounds of Mootness
The agency improperly dismissed complainant's complaint on the grounds
that it has been rendered moot. The regulation set forth at 29 C.F.R. §
1614.107(a)(5) provides for the dismissal of a complaint when the issues
raised therein are moot. To determine whether the issues raised in
complainant's complaint are moot, the factfinder must ascertain whether
(1) it can be said with assurance that there is no reasonable expectation
that the alleged violation will recur; and (2) interim relief or events
have completely and irrevocably eradicated the effects of the alleged
discrimination. See County of Los Angeles v. Davis, 440 U.S. 625, 631
(1979); Kuo v. Department of the Navy, EEOC Request No. 05970343 (July
10, 1998). When such circumstances exist, no relief is available and
no need for a determination of the rights of the parties is presented.
In the instant matter, the Commission notes that CA, in his brief in
support of complainant's appeal, dated October 19, 2005, asserts that
the agency agreed to expunge the letter of reprimand from complainant's
personnel file, but that this action would not occur before January 2006.
However, the record is devoid of evidence that the agency actually
removed the letter of reprimand from complainant's file. Based on these
circumstances, we find that the record does not reflect that interim
relief or events have completely and irrevocably eradicated the effects
of the alleged discrimination.
Dismissal for Untimely EEO Counselor Contact
EEOC Regulation 29 C.F.R. § 1614.105(a)(1) requires that complaints of
discrimination should be brought to the attention of the Equal Employment
Opportunity Counselor within forty-five (45) days of the date of the
matter alleged to be discriminatory or, in the case of a personnel
action, within forty-five (45) days of the effective date of the action.
The Commission has adopted a "reasonable suspicion" standard (as opposed
to a "supportive facts" standard) to determine when the forty-five (45)
day limitation period is triggered. See Howard v. 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.
In the instant matter, the Commission is unable to determine whether
complainant timely initiated EEO Counselor contact. Through her
attorney, complainant asserts that she timely initiated EEO Counselor
contact on November 30, 2004, and that had [the agency] not instructed
[complainant] to refile her complaint with the [agency's] EEO office,
[complainant's] initial filing on November 30, 2004, would have been
well in advance of the deadline. The Commission notes that the instant
matter is distinguishable from Oest, which is cited by CA in his brief
in support of complainant's appeal. In Oest, the Commission found
that the complainant claimed that he was unaware of the applicable
time limits. In the instant matter, however, complainant does not claim
that she was unaware of the time limits. Instead, complainant claims
that she timely initiated EEO Counselor contact on November 30, 2004,
and that [the agency's] own procedural delay of bifurcation should not
have placed the burden of a shortened filing period on the complainant.
Nonetheless, the Commission is unable to determine whether complainant
timely initiated EEO Counselor contact. The record contains a copy of
a letter to CA from HR1 dated December 10, 2004. Therein, HR1 states
that this acknowledges receipt of your letter of November 30, 2004,
in which you submitted a grievance on behalf of [complainant]...Your
letter was addressed to [a named individual, A1], but has been forwarded
to me... HR1 further states that [y]our letter was timely filed
under the NASA grievance System. However, an issue you raised is not
covered. Specifically, your allegation that [complainant] has failed
to accommodate [complainant's] disability is subject to review under
the Federal employee discrimination complaint procedure. HR1 further
informed CA that complainant may file a complaint of discrimination
within 45 days of the alleged discriminatory event and to contact the
agency's EEO office for further information on this process.
The Commission notes that the record does not contain a copy of CA's
letter to A1 dated November 30, 2004. In addition, the record is devoid
of information as to whether A1 was an EEO Counselor or an individual
logically connected to the EEO process. The Commission has held that in
order to establish EEO Counselor contact, an individual must contact an
agency official logically connected to the EEO process and exhibit and
intent to begin the process. See Allen v. United States Postal Service,
EEOC Request No. 05950933 (July 8, 1996).
In summary, the agency's dismissal of the instant complaint on the grounds
of mootness was improper and is REVERSED. The agency's dismissal of the
instant complaint on the alternative grounds of untimely EEO Counselor
contact is VACATED and we REMAND this matter to the agency for further
processing in accordance with the ORDER below.
ORDER
The agency is ORDERED to take the following action:
Within thirty (30) calendar days from the date this decision becomes
final, the agency shall supplement the record with a copy of CA's letter
to A1 dated November 30, 2004. The agency shall also supplement the
record with affidavit and/or documentary evidence indicating whether
A1 was an EEO Counselor or an individual logically connected to the
EEO process. Thereafter, the agency should issue a new final decision
dismissing complainant's complaint or a letter accepting complainant's
complaint for investigation.
A copy of the agency's new final decision dismissing complainant's
complaint or the letter accepting complainant's complaint for
investigation 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. | Shari Kamm v. National Aeronautics and Space Administration
01A60243
March 29, 2006
.
Shari Kamm,
Complainant,
v.
Michael Griffin,
Administrator,
National Aeronautics and Space Administration,
Agency.
Appeal No. 01A60243
Agency No. NCN-05-HQ-A024
DECISION
Complainant filed a timely appeal with this Commission from the final
agency decision dated September 7, 2005, dismissing her formal EEO
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.
On April 18, 2005, complainant filed a formal complaint, claiming that
she was subjected to unlawful employment discrimination on the basis
of disability.
On September 7, 2005, the agency issued a final decision. Therein,
the agency determined that complainant's complaint was comprised of the
following claim:
[Complainant was] denied a reasonable accommodation for [her] disability
(Adult Attention Deficit Disorder) between May 2004 and September 2004,
which contributed to [her] receiving an official reprimand for rude and
obstructive behavior on November 17, 2004.<1>
The agency dismissed complainant's complaint on the grounds of untimely
EEO Counselor contact. Specifically, the agency found that complainant
initiated EEO Counselor contact on January 6, 2005. The agency stated
that to the extent complainant's complaint is comprised of the claim
of a reasonable accommodation denial, complainant acknowledged receipt
of the requested accommodation in September 2004. The agency asserted
that complainant's EEO contact on January 6, 2005, was outside of the
applicable time period. The agency further found that to the extent
complainant's complaint was comprised of a claim relating to receipt of
a reprimand on November 17, 2004, complainant's initial EEO Counselor
contact on January 6, 2005, was likewise untimely.
The agency also dismissed complainant's complaint on the alternative
grounds of mootness. Specifically, the agency stated that [b]y providing
[complainant] with an accommodation in the form of an office in September
2004, the effects of the prior alleged discriminatory acts have been
eradicated, and there is no likelihood of a recurrence.
On appeal, complainant, through her attorney, asserts that the agency's
dismissal of her complaint is improper. Specifically, complainant's
attorney (CA) asserts that on November 30, 2004, she filed an EEO
complaint as part of her NASA adverse action grievance. CA further
states that the Acting Director of the Human Resources Management
Division (HR1) advised [complainant] to bifurcate her due process
grievance from her EEO grievance and she instructed [complainant] to
resubmit them separately, which [complainant] did on December 23, 2004,
and January 6, 2005, respectively.
CA further asserts that this case is similar to Oest v. Department
of Justice, EEOC Appeal No. 01A53204 (September 13, 2005), in
which the Commission reversed the agency's final action dismissing
complainant's complaint on the grounds of untimely EEO Counselor contact.
Specifically, complainant asserts that [s]imilar to Oest, complainant
filed her complaint of discrimination jointly with another complaint
and was instructed to refile her complaint of discrimination with the
EEO office. However, the procedural delay that [the agency] imposed
by requiring bifurcation shortened [complainant's] time for filing
by a full 18 calendar days from the date of the discriminatory action.
This delay was beyond [complainant's] control, and it should be a reason
considered sufficient by the agency or the Commission' for extending
the 45-day time limit.
CA also asserts that the agency's dismissal of complainant's complaint
on the grounds that it has been rendered moot is improper. CA states
that the official reprimand remains in complainant's personnel file
and complainant has incurred legal fees in attempting to expunge the
letter of reprimand. CA further states that [f]ollowing a meeting
with [complainant] and her attorney, NASA Assistant Administrator for
External Relations...agreed to expunge the letter from [complainant's]
file but this will not occur before January 2006.
As a threshold matter, the Commission finds that the crux of complainant's
complaint is that she was subjected to discrimination when she received a
letter of reprimand. The record contains a copy of the EEO Counselor's
Report. Therein, the EEO Counselor expressly states that complainant's
claim of discrimination is that she was discriminated against based
on her disability...when she was issued a letter of reprimand ...She
said that the delay in granting her request for reasonable accommodation
contributed to the workplace conflict that results in her being unfairly
subjected to ...[the] subsequent reprimand by her supervisor.
In her formal complaint, complainant states in pertinent part, that the
resulting delay [in providing her with a reasonable accommodation] was
a contributing factor in any of my actions that...led [the agency], on
November 17, 2004, to issue an official reprimand for rude and obstructive
behavior. I contend that had [the agency] accommodated my disability in
May 2004, ...[the] adverse action would not have been taken against me.
Finally, on appeal, CA states in his brief that the adverse personnel
action in this case, issuance of the letter of reprimand, occurred on
November 17, 2004. Thus, we find that complainant's references to a
delay in the agency providing her with a reasonable accommodation are
background information in support of her claim that she was subjected
to discrimination when she received a letter of reprimand.
Dismissal on the Grounds of Mootness
The agency improperly dismissed complainant's complaint on the grounds
that it has been rendered moot. The regulation set forth at 29 C.F.R. §
1614.107(a)(5) provides for the dismissal of a complaint when the issues
raised therein are moot. To determine whether the issues raised in
complainant's complaint are moot, the factfinder must ascertain whether
(1) it can be said with assurance that there is no reasonable expectation
that the alleged violation will recur; and (2) interim relief or events
have completely and irrevocably eradicated the effects of the alleged
discrimination. See County of Los Angeles v. Davis, 440 U.S. 625, 631
(1979); Kuo v. Department of the Navy, EEOC Request No. 05970343 (July
10, 1998). When such circumstances exist, no relief is available and
no need for a determination of the rights of the parties is presented.
In the instant matter, the Commission notes that CA, in his brief in
support of complainant's appeal, dated October 19, 2005, asserts that
the agency agreed to expunge the letter of reprimand from complainant's
personnel file, but that this action would not occur before January 2006.
However, the record is devoid of evidence that the agency actually
removed the letter of reprimand from complainant's file. Based on these
circumstances, we find that the record does not reflect that interim
relief or events have completely and irrevocably eradicated the effects
of the alleged discrimination.
Dismissal for Untimely EEO Counselor Contact
EEOC Regulation 29 C.F.R. § 1614.105(a)(1) requires that complaints of
discrimination should be brought to the attention of the Equal Employment
Opportunity Counselor within forty-five (45) days of the date of the
matter alleged to be discriminatory or, in the case of a personnel
action, within forty-five (45) days of the effective date of the action.
The Commission has adopted a "reasonable suspicion" standard (as opposed
to a "supportive facts" standard) to determine when the forty-five (45)
day limitation period is triggered. See Howard v. 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.
In the instant matter, the Commission is unable to determine whether
complainant timely initiated EEO Counselor contact. Through her
attorney, complainant asserts that she timely initiated EEO Counselor
contact on November 30, 2004, and that had [the agency] not instructed
[complainant] to refile her complaint with the [agency's] EEO office,
[complainant's] initial filing on November 30, 2004, would have been
well in advance of the deadline. The Commission notes that the instant
matter is distinguishable from Oest, which is cited by CA in his brief
in support of complainant's appeal. In Oest, the Commission found
that the complainant claimed that he was unaware of the applicable
time limits. In the instant matter, however, complainant does not claim
that she was unaware of the time limits. Instead, complainant claims
that she timely initiated EEO Counselor contact on November 30, 2004,
and that [the agency's] own procedural delay of bifurcation should not
have placed the burden of a shortened filing period on the complainant.
Nonetheless, the Commission is unable to determine whether complainant
timely initiated EEO Counselor contact. The record contains a copy of
a letter to CA from HR1 dated December 10, 2004. Therein, HR1 states
that this acknowledges receipt of your letter of November 30, 2004,
in which you submitted a grievance on behalf of [complainant]...Your
letter was addressed to [a named individual, A1], but has been forwarded
to me... HR1 further states that [y]our letter was timely filed
under the NASA grievance System. However, an issue you raised is not
covered. Specifically, your allegation that [complainant] has failed
to accommodate [complainant's] disability is subject to review under
the Federal employee discrimination complaint procedure. HR1 further
informed CA that complainant may file a complaint of discrimination
within 45 days of the alleged discriminatory event and to contact the
agency's EEO office for further information on this process.
The Commission notes that the record does not contain a copy of CA's
letter to A1 dated November 30, 2004. In addition, the record is devoid
of information as to whether A1 was an EEO Counselor or an individual
logically connected to the EEO process. The Commission has held that in
order to establish EEO Counselor contact, an individual must contact an
agency official logically connected to the EEO process and exhibit and
intent to begin the process. See Allen v. United States Postal Service,
EEOC Request No. 05950933 (July 8, 1996).
In summary, the agency's dismissal of the instant complaint on the grounds
of mootness was improper and is REVERSED. The agency's dismissal of the
instant complaint on the alternative grounds of untimely EEO Counselor
contact is VACATED and we REMAND this matter to the agency for further
processing in accordance with the ORDER below.
ORDER
The agency is ORDERED to take the following action:
Within thirty (30) calendar days from the date this decision becomes
final, the agency shall supplement the record with a copy of CA's letter
to A1 dated November 30, 2004. The agency shall also supplement the
record with affidavit and/or documentary evidence indicating whether
A1 was an EEO Counselor or an individual logically connected to the
EEO process. Thereafter, the agency should issue a new final decision
dismissing complainant's complaint or a letter accepting complainant's
complaint for investigation.
A copy of the agency's new final decision dismissing complainant's
complaint or the letter accepting complainant's complaint for
investigation 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
March 29, 2006
__________________
Date
1In its final decision, the agency also
determined that complainant's complaint also included the following
claim: [i]n retaliation for [complainant's] EEO activity, and due to
[complainant's] sexual orientation or perceived sexual orientation,
[complainant's] security clearance was suspended on May 2, 2005.
The agency stated that complainant did not receive EEO Counseling on
this issue and that it was not like or related to the issue on which
complainant received EEO counseling . The agency therefore instructed
complainant to contact the EEO office to initiate EEO counseling.
Because the agency has not taken final action on this issue, we find it
is not properly before us and we decline to address it herein.
| [
"Kuo v. Department of the Navy, EEOC Request No. 05970343 (July 10, 1998)",
"Howard v. Department of the Navy, EEOC Request No. 05970852 (February 11, 1999)",
"Allen v. United States Postal Service, EEOC Request No. 05950933 (July 8, 1996)",
"440 U.S. 625",
"29 C.F.R. § 1614.107(a)",
"29 C.F.R. § 1614.105... | [
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0.08379758149385452,
0.050525035709142685,
0.00750089343637228,
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0.08240479975938797,
0.03533356264233589,
-0.0040377904660999775,
0.015404876321554184,
0.... |
107 | https://www.eeoc.gov/sites/default/files/migrated_files/decisions/0120170646.txt | 0120170646.txt | TXT | text/plain | 13,227 | Estefana M,1 Complainant, v. Sean J. Stackley, Acting Secretary, Department of the Navy, Agency. | October 28, 2016 | Appeal Number: 0120170646
Background:
At the time of events giving rise to this complaint, Complainant worked as an employee at the Agency's Medical Care Recovery Unit facility in Pensacola, Florida.
On August 9, 2016, Complainant contacted the Agency's EEO office alleging that she had been subjected to discriminatory harassment by her supervisor on the bases of her sex (female) and disability. She asserted that the ongoing harassment had taken a toll on her, including exacerbating her chronic medical condition. Therefore, she asked that she be allowed to telework four out of the five days a week, or be considered for a transfer.
It appears that the Agency's EEO office processed Complainant's claims through its reasonable accommodation request process only and did not also process it as an EEO complaint under the procedures detailed in 29 C.F.R. Part 1614. There was a subsequent exchange with Complainant seeking documentation to support her reasonable accommodation request, as well as her claims for leave under the Family Medical Leave Act and a claim with the Office of Workers' Compensation Programs.
By letter dated October 28, 2016, the Agency's Claims and Tort Litigation Director issued Complainant a letter stating that they had determined that Complainant's claims of a hostile work environment were not substantiated. Complainant submitted the instant appeal based on this letter.
Legal Analysis:
Upon review of the record, it appears that Complainant believed that she was filing an EEO complaint when she sent the "complaint to employer" document in August 2016. Clearly, based on the emails provided by the Agency, the EEO Office received these documents and understood Complainant's intent to pursue an EEO complaint. However, the Agency did not process her complaint within the EEO complaint process. Instead, the Agency conducted an internal investigation and issued a letter to her finding her claim was unsubstantiated.
Prior to a request for a hearing in on an EEO complaint, the Agency may dismiss an EEO complaint on grounds set forth in 29 C.F.R. § 1614.107(a). However, in this case, the Agency did not permit Complainant to proceed through the 29 C.F.R. Part 1614 process. The Agency, in essence, dismissed the matter prior to Complainant being provided with a right to file a formal complaint. We find that the Agency's action was in error. The Agency is required to provide Complainant with EEO counseling and issue a notice of right to file a formal complaint if the matter cannot be resolved through counseling. It cannot preclude Complainant from filing her formal complaint, and can only dismiss a matter, pursuant to 29 C.F.R. § 1614.107(a), once a formal complaint has been filed.
Moreover, when an agency dismisses a complaint under 29 C.F.R. § 1614.107(a), the Agency must issue a final decision. The final decision must consist of the rationale for dismissing any claims in the complaint. The final decision shall contain notice of the right to appeal the final action to the Commission, the right to file a civil action in a U.S. District Court, the name of the proper defendant in any such lawsuit, and the applicable time limits for appeals and lawsuits, It should also include a copy of EEOC Form 573, Notice of Appeal/Petition, attached to the final decision/determination. See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), 5-34 (Aug. 5, 2015). Here, the Agency's dismissal of the pre-complaint matter failed to adequately meet these criteria for a proper final decision.
As the Agency has improperly processed the matter at hand and failed to provide Complainant the opportunity to file a formal complaint, we find that there was no appropriate dismissal to address. Therefore, we shall remand the matter for proper processing. | Estefana M,1
Complainant,
v.
Sean J. Stackley,
Acting Secretary,
Department of the Navy,
Agency.
Appeal No. 0120170646
DECISION
Complainant filed a timely appeal with this Commission from the Agency's decision dated October 28, 2016, dismissing her matter 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
At the time of events giving rise to this complaint, Complainant worked as an employee at the Agency's Medical Care Recovery Unit facility in Pensacola, Florida.
On August 9, 2016, Complainant contacted the Agency's EEO office alleging that she had been subjected to discriminatory harassment by her supervisor on the bases of her sex (female) and disability. She asserted that the ongoing harassment had taken a toll on her, including exacerbating her chronic medical condition. Therefore, she asked that she be allowed to telework four out of the five days a week, or be considered for a transfer.
It appears that the Agency's EEO office processed Complainant's claims through its reasonable accommodation request process only and did not also process it as an EEO complaint under the procedures detailed in 29 C.F.R. Part 1614. There was a subsequent exchange with Complainant seeking documentation to support her reasonable accommodation request, as well as her claims for leave under the Family Medical Leave Act and a claim with the Office of Workers' Compensation Programs.
By letter dated October 28, 2016, the Agency's Claims and Tort Litigation Director issued Complainant a letter stating that they had determined that Complainant's claims of a hostile work environment were not substantiated. Complainant submitted the instant appeal based on this letter.
ANALYSIS AND FINDINGS
When a Complainant contacts an Agency EEO office with the intention to file an EEO complaint, the EEO office has a duty to provide EEO counseling. 29 C.F.R. § 1614.105. If the dispute has not been resolved to the satisfaction of the aggrieved person, the EEO Counselor must tell the aggrieved person that she has the right to pursue the claim further through the formal complaint procedure. It is the aggrieved person, and not the EEO Counselor, who must decide whether to file a formal complaint of discrimination. Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at 2-17 (as revised Aug. 5, 2015). The EEO Counselor shall not attempt in any way to restrain the aggrieved person from filing a complaint. 29 C.F.R. § 1614.105(g).
Here, the Agency violated these requirements. While the Agency believed, based on its internal investigation, that Complainant's complaint of harassment was subject to procedural dismissal, this was not a reason to refuse to provide EEO counseling. The Agency also had a duty, unless the parties otherwise resolved the matter, to issue the Complainant a notice of right to file a complaint. 29 C.F.R. § 1614.105. The time to dismiss a complaint pursuant to 29 C.F.R. § 1614.107, if the Agency finds it has reason to do so, is after a complainant files a formal complaint, not before. Such a dismissal must include appeal rights to this office. Dismissing Complainant's informal complaint without appeal rights violated the above regulations and EEO MD-110.
Upon review of the record, it appears that Complainant believed that she was filing an EEO complaint when she sent the "complaint to employer" document in August 2016. Clearly, based on the emails provided by the Agency, the EEO Office received these documents and understood Complainant's intent to pursue an EEO complaint. However, the Agency did not process her complaint within the EEO complaint process. Instead, the Agency conducted an internal investigation and issued a letter to her finding her claim was unsubstantiated.
Prior to a request for a hearing in on an EEO complaint, the Agency may dismiss an EEO complaint on grounds set forth in 29 C.F.R. § 1614.107(a). However, in this case, the Agency did not permit Complainant to proceed through the 29 C.F.R. Part 1614 process. The Agency, in essence, dismissed the matter prior to Complainant being provided with a right to file a formal complaint. We find that the Agency's action was in error. The Agency is required to provide Complainant with EEO counseling and issue a notice of right to file a formal complaint if the matter cannot be resolved through counseling. It cannot preclude Complainant from filing her formal complaint, and can only dismiss a matter, pursuant to 29 C.F.R. § 1614.107(a), once a formal complaint has been filed.
Moreover, when an agency dismisses a complaint under 29 C.F.R. § 1614.107(a), the Agency must issue a final decision. The final decision must consist of the rationale for dismissing any claims in the complaint. The final decision shall contain notice of the right to appeal the final action to the Commission, the right to file a civil action in a U.S. District Court, the name of the proper defendant in any such lawsuit, and the applicable time limits for appeals and lawsuits, It should also include a copy of EEOC Form 573, Notice of Appeal/Petition, attached to the final decision/determination. See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), 5-34 (Aug. 5, 2015). Here, the Agency's dismissal of the pre-complaint matter failed to adequately meet these criteria for a proper final decision.
As the Agency has improperly processed the matter at hand and failed to provide Complainant the opportunity to file a formal complaint, we find that there was no appropriate dismissal to address. Therefore, we shall remand the matter for proper processing.
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 dismissal of the matter at hand and REMAND the matter for further processing in accordance with the ORDER below.
ORDER
The Agency shall process Complainant's pre-complaint contact within 15 calendar days of the date of this decision. For purposes of timeliness, the Agency shall consider the date of contact to be August 9, 2016. At this time, Complainant can bring to the EEO Counselor's attention any additional claims or incidents that have occurred since her initial date of contact. If within 30 calendar days the matter is not resolved informally and the parties have not agreed to an extension, the Agency shall provide Complainant a notice of right to file a formal complaint. If she files a formal complaint, it shall be processed pursuant to the provisions of 29 C.F.R. Part 1614.
A copy of the Agency's EEO counseling report and notice of right to file a formal complaint (unless the matter has been resolved) 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, 2017
__________________
Date
------------------------------------------------------------
------------------------------------------------------------
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108 | https://www.eeoc.gov/sites/default/files/decisions/2024_02_05/2023004175.pdf | 2023004175.pdf | PDF | application/pdf | 30,315 | Freddy V.,1 Complainant, v. Janet L. Yellen, Secretary, Department of the Treasury (Internal Revenue Service), Agency. | June 14, 2023 | Appeal Number: 2023004175
Background:
During the period at issue , Complainant worked for the Agency as a Legal Assistant in Seattle,
Washington. On May 27, 2023, Complainant filed a formal complaint alleging that the Agency subjected him to discrimination based on race (African American), sex ( male ), color (non- white), disability,
and in reprisal for prior protected EEO activity . In its final decision dated June 14, 2023, the
Agency framed the claims in the following fashion:
1. From October 2022 through the present, Complainant’s reasonable accommodation request of full -time telework was denied .
2. In or around April 2021, Complainant was not selected for the position of
paralegal under vacancy an nouncement number CCAH -21.
3. In or around February 2022, Complainant was denied training .
4. In or around August 2022, Complaina nt was not selected for the position of
Legal Support, under Vacancy Announcement CCCR- 22-11592595- MP;
5. In or around September 2022, Complainant was not selected for the position of
Paralegal under Vacancy Announcement No. CCCW -22-11623714.
6. In or around September 2022, Complainant was not selected for the position of
Paralegal under Vacancy Announcement CCC W-22-11623714- DE and posted
it at a higher grade level.
7. On March 31, 2023, Complainant was issued a reprimand for failure to return to work in the office .
8. In or around April 2023, management placed Complainant on sick leave despite that he worked during the time of the alleged leave .
9. In or around May 2023, management changed Complainant’s work hours .
10. Complainant was subjected to various acts of harassment, including but not
limited to:
a. In or around September 2021, management allowed some employees to train on specific tasks;
b. In or around September 2021 and February 2022, management informed certain employees of job opportunities;
c. In or around September 2021, management assigned an em ployee with
unpleasant attitude to train Complainant.
d. In or around February 2022, management did not allow Complainant to mail supplies;
e. In or around February 2022, management failed to congratulate Complainant for receiving upward mobility.
f. In or aroun d May 2022, Complainant was required to sign a telework
contract;
g. In or around May and Septem ber 2022, Complainant’s work was
questioned, despite that he had not committed any errors;
h. In or around June 2022, management allowed Complainant’s co-
workers to complete Complainant’s assigned work;
i. In or around June 2022, management did not allow Compl ainant the
opportunity to act in the Lead position;
j. In or around August 2022, management met with a new employee and instructed him to email Complainant;
k. In or around October 2022, management made fun of Complainant’s
request for detail training because he was confused;
l. In or around November 2022, Complainant was only provided with a limited amount of supplies for performing his mailing dutie s;
m. In or around November 2022, management insulted Complainant’s intelligence by telling him that “it’s common se nse” when seeking
clarification during training;
n. In or around December 2022, management gave Complainant a gift
card on the day prior to Chri stmas, whereas his co -workers received
theirs simultaneously;
o. From January -March 2023, management removed work fr om
Complainant and reassigned it to other employees, including training
them on procedures not provided to Complainant;
p. In or around January 2023, during a meeting, management acknowledged that upper management mistreated employees and that nothing could be done about it;
q. In or around January and February 2023, management changed Complainant’s working conditions;
r. In or around January 2023, C omplainant was only provided with a
limited amount of supplies for performing his mailing duties;
s. In or around Fe bruary 2023, management informed employees that
there was an employee in the workplace with COVID -19;
t. In or around March 2023, management fai led to instill COVID
preventative measures in the workplace;
u. In or around March 2023, Complainant’s EEO Counselor informed
Complainant that his first- line supervisor would render a decision on
his reasonable accommodation request; however, Complainant’s t hird-
line supervisor made the determination;
v. In or around March 2023, management questioned whether
Complainant c ompleted a task;
w. In or around April 2023, management trained a new employee to open cases;
x. In or around April 2023, management informed Complainant that
building security personnel have the authority to search him;
y. In or around April 2023, building security “falsely imprisoned” Complainant and demanded to see his identification before allowing him to leave the premises;
z. In or ar ound May 2023, in a meeting in which Complainant interrupted
his supervisor, she told him to “stop it” ;
aa. In or around November 2022 and January 2023, management
congratulated a new employee and others who worked in the office;
bb. In or around January 2023, C omplainant provided medical
documentation confirming his disability; and
cc. In or around March 2023, another Legal Assistant was hired at the GS -
7 level, despite that Complainant has been hired as a GS -6.
The Agency dismissed claim (1), the denial of a reasonable accommodation for full- time
telework, on the grounds that Complainant previously filed a grievance on this same matter.
Specifically, the Agency reasoned that the union filed a grievance on Complainant’s behalf regarding this matter on March 1, 2023 , and a decision on the grievance was issued on May 22,
2023. The Agency further set forth that the collective bargaining agre ement permits allegations
of discrimination, and that Complainant subsequently filed his formal EEO complaint pertaining to the same matter on May 27, 2023.
The Agency dismissed claims (2) -(6) and (10)(a) -10(b) for untimely EEO Counselor contact.
The Age ncy reasoned that the most recent event of the alleged incidents occurred on September
22, 2022, and that Comp lainant did not initiate EEO contact until March 7, 2023, outside of the
applicable time period.
The Agency dismissed claims (7) -(9) and claims 10(c) -(z) for not raising these matters with an
EEO Counselor. The Agency asserts that Complainant, in his f ormal complaint, acknowledges
that he did not raise all claims with an EEO Counselor. In addition, the Agency sets forth that Complainant’s EEO C ounselor in this matter asserted that Complainant only wanted to include
the denial of the reasonable accommod ation for full- time telework during EEO Counseling.
The Agency dismissed clai ms (10)aa -cc for failure to state a claim reasoning that these matte rs
do not allege a harm or loss with respect to a term, condition, or privilege of employment.
The instant appeal followed. On appeal, Complainant asserts that , based on his recollection , he
contacted the EEO Counselor on February 22, 2023 and March 1, 2023.
2 He asserts that the
Agency did not inform him that he needed to elect a forum of either fili ng a grievance or an EEO
complaint. Complainant asserts , “shouldn’t management or the EEO Counselor have warned me
that I could not file a grievance because I had already started EEO activity regarding this
matter. ” Finally, Complainant requests that we f orgive his “errors” pertaining to applicable time
limits.
In response, the Agency requests that we affirm its dismissal of Complainant’s complaint. The
Agency reiterates its reasoning set forth in its final decision.
Legal Analysis:
EEOC Regulation 29 C.F.R. § 1614.301(a) states that when a person is employed by an agency subject to 5 U.S.C. § 7121(d) and is covered by a collective bargaining agreement that permits claims of discrimination to be raised in a neg otiated grievance procedure, a person wishing to file
a complaint or grievance on a matter of alleged employment discrimination must elect to raise the matter under either part 1614 or the negotiated grievance procedure, but not both. An
aggrieved employe e who files a grievance with an agency whose negotiated agreement permits
the acceptance of grievances which allege discrimination may not thereafter file a complain t on
the same matter under this part 1614 irrespective of whether the agency has informed t he
individual of the need to elect or whether the grievance has raised an issue of discrimination.
2 On appeal, Complainant submits emails between him and the Agency EEO Director in
February and March 2023.
We find that the record reflects that the Agency properly dismi ssed this claim up until the date of
the grievance decision on May 22, 2023. The Agency’s May 22, 2023 memorandum to
Complainant entitled Management’s Response to Final Step Grievance…re: Denied Reasonable
Accommodation Request reflects that the union fil ed a grievance for Complainant on March 1,
2023 regarding the denial of his reasonable acco mmodation request for full -time telework. The
Agency denied Complainant’s grievance. In addition, the record contains copies of pertinent provisions of the Agency’ s collective bargaining agreement reflecting that employees could raise
allegations in the grievance process or the EEO process, but not both.
Even assuming arguendo that Complainant initiated EEO contact in February 202 3, prior to
filing his grievance, a s he asserts on appeal, this would not alter our dismissal of claim (1) up to
the date of t he May 22, 2023 grievance decision. 29 C.F.R. § 1614.301(a) provides, in pertinent
part, that an election to proceed under the EEO administrative process is indicat ed only by the
filing of a written complaint and that use of the pre -complaint EEO process does not constitute
an election. Thus, even assuming arguendo that Complainant initiated EEO contact in February 2023; this would not indicate an election of the EE O process because Complainant did not file
his formal EEO complaint until May 27, 2023. As set forth above, Complainant filed a
grievance o n March 1, 2023. T hus, Complainant elected to pursue the grievance process
regarding this matter. To the extent Complainant asserts that the Agency did not inform him of the need to elect only one forum, Commission regulations provide for the dismissal of a complaint when the same matter has been previously raised in the grievance process irrespective of whether the agency has informed a complainant of the need to elect a forum. See 29 C.F.R. §
1614.301(a).
However, we find that the Agency improperly dismissed the denial of a reasonable accommodation claim, subsequent to the date of the Agency’s grievance decision, because the
Agency’s obligation to provide a reasonable accommodation is ongoing each time the employee needs it.
3 On appeal, Complainant asserts this matter is ongoing and submits a copy of a letter
dated May 26, 2023, one day prior to filing his formal EEO complaint, from a doctor setting forth that Complainant has anxiety and limits hi s ability to work when near other people. Based
on the foregoing, we remand Complainant’s denial of a reasonable accommodation claim from May 23, 2023 (subsequent to the grievance decision) to present. Dismissal of Claims 7 -9, 10c -z
The regulation set f orth at 29 C.F.R. § 1614.107(a)(2) states, in pertinent part, that an agency
shall dismiss a complaint which raises a matter that has not been brought to the attention of an EEO Counselor, and is not like or related to a matter on which the complainant has received
counseling.
3 An individual’s medical condition and need for an accommodation may change over time.
A later claim or complaint is "like or related" to the original complaint if the later claim or
complaint adds to or clarifies the original complain t and could have reasonably been expected to
grow out of the original complaint durin g the investigation. See Scher v. U.S. Postal Serv.,
EEOC Request No. 05940702 (May 30, 1995); Calhoun v. U.S. Postal Serv., EEOC Request No.
05891068 (Mar. 8, 1990). We find that the Agency properly dismissed claims 8 -9 and 10c -z for not raising these matters
with an EEO Counselor and not being like or related to the matters raised during EEO Counseling. We acknowledge that the record contains a document entitled Compl aint Intake
Form dated March 2, 2023 for Complainant. Therein, Complainant listed various claims, including harassment, non- selection, assignment of duties etc. Complainant had his first
interview with the EEO Counselor on March 9, 2023, subsequent to t he completion of the March
2, 2023 Complaint Intake Form. However, t he EEO Counselor ’s Report reflects that
Complainant was only counseled on one issue with the EEO Counselor, that his request for a reasonable accommodation for full -time telework was deni ed. According to the EEO
Counselor’s Report, the only remedy Complainant was seeking was “permanent remote work.”
In addition, in section 20 of the formal complaint form, Complainant set forth that he did not
discuss all actions raised with an EEO Counselor and merely stated “I contacted management.”
Finally, in an email dated June 7, 2023 from an Agency EEO Specialist to Complainant’s EEO
Counselor, the EEO Specialist set forth the various claims in Complainant’s formal complaint and asked whether Complainant raised any of these matters during EEO Counseling. The EEO Counselor responded via email on June 7, 2023. Therein, the EEO Counselor set forth that “[w]e
did review the information in the intake documents that were provided to me. However,
[Comp lainant] was steadfast in his belief that his claim was specific to the Agency requiring him
to return to the building, [Complainant] confirmed the following statement fully captured his
claim:
[He] alleges being subjected to discrimination based on…on or around October 2022, and continuing to the present , even though [he] submitted medical
documentation regarding his underlying medical conditions associated with higher risk COVID -19, [his] request to remote work as a reasonable
accommodation was denied.
Complainant, on appeal, does not contest this statement from the EEO Counselor. Based on the
foregoing, we find that Complainant only raised the issue of the denial of full telework as a reasonable accommodation during EEO Counseling. Thus we find claim s 8-9 and 10c -z were
not raised during EEO Counseling and are not like or related to the matters raised during EEO
Counseling.
4 On Section 16 of the formal complaint form, the only remedial action listed by Complainant
was “continue to telework.”
We find , however, that claim (7), that Complainant was issued a reprimand for failure to return
to work in the office, is like or related to his denial of a reasonable accommodation claim
pertaining to full -time telework on which he received EEO Counseling. We find that claim (7)
could have been reasonably expected to grow out of an investigation of Complainant’s claim of being denied full -time telework as a reasonable accommodation.
Dismissal of Claims 2 -6, 10a- b
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 Counsel or within forty -five
(45) days of the date of the matter alleged to be discriminatory or, in the case of a personnel
action, within forty -five (45) days of the effective date of the action. The Commission has
adopted a "reasonable suspicion" standard (as opposed to a "supportive facts" standard) to determine when the forty -five (45) day limitation period is triggered. See Howard v. Dep’t of
the Navy, EEOC Request No. 05970852 (Feb. 11, 1999). Thus, the time limitation is not
triggered until a complainant reasonably suspects discrimination, but before all the facts that
support a charge of discrimination have become apparent.
EEOC Regulations provide that the agency or the Commission shall extend the time limits when the individual shows that he was not notified of the time limits and was not otherwise aware of them, that h e 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 c ontrol from contacting the Counselor within the time limits, or for other reasons
considered sufficient by the agency or the Commission.
We find that the Agency properly dismissed the above referenced claims for untimely EEO Counselor contact. According to the EEO Counselor’s Report, Complainant initiated EEO
contact on March 7, 2023. On appeal, Complainant asserts he initiated EEO contact in February 2023. Both of these EEO contact dates occurred more than 45 days from the dates of the alleged inciden ts. We further find that Complainant has not set forth su fficient justification for an
extension of the applicable time limit.
To the extent, Complainant asserts, on appeal, that we should extend the applicable time limit in
this matter because he was ex periencing stress, we disagree. When a complainant claims that a
physical condition prevents him from meeting a particular filing deadline, we have held that in order to justify an untimely filing, a complainant must be so incapacitated by the condition a s to
render him physically unable to make a timely filing. See Zelmer v. U.S. Postal Serv ., EEOC
Request No. 05980164 (March 8, 1989). The same is true regarding claims of incapacity related to psychiatric or psychological conditions. See Crear v. U.S. Postal Serv ., EEOC Request No.
05920700 (Oct. 29, 1992). The record is devoid of evidence that Complainant was so incapacitated during the relevant time periods to prevent him from timely contacting an EEO Counselor.
Dismissal of Claims 10aa- cc
The re gulation 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 b ecause of race, color, religion, sex, national origin, age or
disab ility. 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 privilege of employment for which there is a remedy. Diaz v. Dep’t of the
Air Force , EEOC Request No. 05931049 (Apr. 21, 1994).
We find that the Agency properly dismissed clai ms 10aa -10bb, manag ement congratulating a
new employee who worked in the office and Complainant providing documentation pertaining his alleged disability, for failure to state a claim. We find that these matters do not establish a harm or loss with respec t to a term, condition, or privilege of his employment. We further find
that these matters are not sufficiently severe or pervasive to set forth an actionable claim of harassment. Finally, regarding the basi s of reprisal, we find that these alleged incid ents are not
reasonably likely to deter Complainant or others from engaging in protected EEO activity.
Regarding claim 10cc, that in M arch 2023 another Legal Assistant was hired at the GS -7 level
while he was hired as a GS -6, Complainant appears to be all eging a discriminatory pay claim.
While the Agency dismissed this matter for failure to state a claim, we find that this matter, a discriminatory pay claim, is more properly dismissed for failure to raise this matter with an EEO
Counselor and not being li ke or related to the matter raised during EEO Counseling. As set forth
above, we found that the sole claim Complainant raised during E EO Counseling was a denial of
a reasonable accommodation for full- time telework. | Freddy V.,1
Complainant,
v.
Janet L. Yellen,
Secretary,
Department of the Treasury
(Internal Revenue Service),
Agency.
Appeal No. 2023004175
Agency No. IRSCC-23-0452
DECISION
Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC
or Commission) from t he Agency's final decision dated June 14, 2023, 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., 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 for the Agency as a Legal Assistant in Seattle,
Washington. On May 27, 2023, Complainant filed a formal complaint alleging that the Agency subjected him to discrimination based on race (African American), sex ( male ), color (non- white), disability,
and in reprisal for prior protected EEO activity . In its final decision dated June 14, 2023, the
Agency framed the claims in the following fashion:
1. From October 2022 through the present, Complainant’s reasonable accommodation request of full -time telework was denied .
2. In or around April 2021, Complainant was not selected for the position of
paralegal under vacancy an nouncement number CCAH -21.
3. In or around February 2022, Complainant was denied training .
4. In or around August 2022, Complaina nt was not selected for the position of
Legal Support, under Vacancy Announcement CCCR- 22-11592595- MP;
5. In or around September 2022, Complainant was not selected for the position of
Paralegal under Vacancy Announcement No. CCCW -22-11623714.
6. In or around September 2022, Complainant was not selected for the position of
Paralegal under Vacancy Announcement CCC W-22-11623714- DE and posted
it at a higher grade level.
7. On March 31, 2023, Complainant was issued a reprimand for failure to return to work in the office .
8. In or around April 2023, management placed Complainant on sick leave despite that he worked during the time of the alleged leave .
9. In or around May 2023, management changed Complainant’s work hours .
10. Complainant was subjected to various acts of harassment, including but not
limited to:
a. In or around September 2021, management allowed some employees to train on specific tasks;
b. In or around September 2021 and February 2022, management informed certain employees of job opportunities;
c. In or around September 2021, management assigned an em ployee with
unpleasant attitude to train Complainant.
d. In or around February 2022, management did not allow Complainant to mail supplies;
e. In or around February 2022, management failed to congratulate Complainant for receiving upward mobility.
f. In or aroun d May 2022, Complainant was required to sign a telework
contract;
g. In or around May and Septem ber 2022, Complainant’s work was
questioned, despite that he had not committed any errors;
h. In or around June 2022, management allowed Complainant’s co-
workers to complete Complainant’s assigned work;
i. In or around June 2022, management did not allow Compl ainant the
opportunity to act in the Lead position;
j. In or around August 2022, management met with a new employee and instructed him to email Complainant;
k. In or around October 2022, management made fun of Complainant’s
request for detail training because he was confused;
l. In or around November 2022, Complainant was only provided with a limited amount of supplies for performing his mailing dutie s;
m. In or around November 2022, management insulted Complainant’s intelligence by telling him that “it’s common se nse” when seeking
clarification during training;
n. In or around December 2022, management gave Complainant a gift
card on the day prior to Chri stmas, whereas his co -workers received
theirs simultaneously;
o. From January -March 2023, management removed work fr om
Complainant and reassigned it to other employees, including training
them on procedures not provided to Complainant;
p. In or around January 2023, during a meeting, management acknowledged that upper management mistreated employees and that nothing could be done about it;
q. In or around January and February 2023, management changed Complainant’s working conditions;
r. In or around January 2023, C omplainant was only provided with a
limited amount of supplies for performing his mailing duties;
s. In or around Fe bruary 2023, management informed employees that
there was an employee in the workplace with COVID -19;
t. In or around March 2023, management fai led to instill COVID
preventative measures in the workplace;
u. In or around March 2023, Complainant’s EEO Counselor informed
Complainant that his first- line supervisor would render a decision on
his reasonable accommodation request; however, Complainant’s t hird-
line supervisor made the determination;
v. In or around March 2023, management questioned whether
Complainant c ompleted a task;
w. In or around April 2023, management trained a new employee to open cases;
x. In or around April 2023, management informed Complainant that
building security personnel have the authority to search him;
y. In or around April 2023, building security “falsely imprisoned” Complainant and demanded to see his identification before allowing him to leave the premises;
z. In or ar ound May 2023, in a meeting in which Complainant interrupted
his supervisor, she told him to “stop it” ;
aa. In or around November 2022 and January 2023, management
congratulated a new employee and others who worked in the office;
bb. In or around January 2023, C omplainant provided medical
documentation confirming his disability; and
cc. In or around March 2023, another Legal Assistant was hired at the GS -
7 level, despite that Complainant has been hired as a GS -6.
The Agency dismissed claim (1), the denial of a reasonable accommodation for full- time
telework, on the grounds that Complainant previously filed a grievance on this same matter.
Specifically, the Agency reasoned that the union filed a grievance on Complainant’s behalf regarding this matter on March 1, 2023 , and a decision on the grievance was issued on May 22,
2023. The Agency further set forth that the collective bargaining agre ement permits allegations
of discrimination, and that Complainant subsequently filed his formal EEO complaint pertaining to the same matter on May 27, 2023.
The Agency dismissed claims (2) -(6) and (10)(a) -10(b) for untimely EEO Counselor contact.
The Age ncy reasoned that the most recent event of the alleged incidents occurred on September
22, 2022, and that Comp lainant did not initiate EEO contact until March 7, 2023, outside of the
applicable time period.
The Agency dismissed claims (7) -(9) and claims 10(c) -(z) for not raising these matters with an
EEO Counselor. The Agency asserts that Complainant, in his f ormal complaint, acknowledges
that he did not raise all claims with an EEO Counselor. In addition, the Agency sets forth that Complainant’s EEO C ounselor in this matter asserted that Complainant only wanted to include
the denial of the reasonable accommod ation for full- time telework during EEO Counseling.
The Agency dismissed clai ms (10)aa -cc for failure to state a claim reasoning that these matte rs
do not allege a harm or loss with respect to a term, condition, or privilege of employment.
The instant appeal followed. On appeal, Complainant asserts that , based on his recollection , he
contacted the EEO Counselor on February 22, 2023 and March 1, 2023.
2 He asserts that the
Agency did not inform him that he needed to elect a forum of either fili ng a grievance or an EEO
complaint. Complainant asserts , “shouldn’t management or the EEO Counselor have warned me
that I could not file a grievance because I had already started EEO activity regarding this
matter. ” Finally, Complainant requests that we f orgive his “errors” pertaining to applicable time
limits.
In response, the Agency requests that we affirm its dismissal of Complainant’s complaint. The
Agency reiterates its reasoning set forth in its final decision.
ANALYSIS AND FINDINGS
Dismissal of Claim (1)
EEOC Regulation 29 C.F.R. § 1614.301(a) states that when a person is employed by an agency subject to 5 U.S.C. § 7121(d) and is covered by a collective bargaining agreement that permits claims of discrimination to be raised in a neg otiated grievance procedure, a person wishing to file
a complaint or grievance on a matter of alleged employment discrimination must elect to raise the matter under either part 1614 or the negotiated grievance procedure, but not both. An
aggrieved employe e who files a grievance with an agency whose negotiated agreement permits
the acceptance of grievances which allege discrimination may not thereafter file a complain t on
the same matter under this part 1614 irrespective of whether the agency has informed t he
individual of the need to elect or whether the grievance has raised an issue of discrimination.
2 On appeal, Complainant submits emails between him and the Agency EEO Director in
February and March 2023.
We find that the record reflects that the Agency properly dismi ssed this claim up until the date of
the grievance decision on May 22, 2023. The Agency’s May 22, 2023 memorandum to
Complainant entitled Management’s Response to Final Step Grievance…re: Denied Reasonable
Accommodation Request reflects that the union fil ed a grievance for Complainant on March 1,
2023 regarding the denial of his reasonable acco mmodation request for full -time telework. The
Agency denied Complainant’s grievance. In addition, the record contains copies of pertinent provisions of the Agency’ s collective bargaining agreement reflecting that employees could raise
allegations in the grievance process or the EEO process, but not both.
Even assuming arguendo that Complainant initiated EEO contact in February 202 3, prior to
filing his grievance, a s he asserts on appeal, this would not alter our dismissal of claim (1) up to
the date of t he May 22, 2023 grievance decision. 29 C.F.R. § 1614.301(a) provides, in pertinent
part, that an election to proceed under the EEO administrative process is indicat ed only by the
filing of a written complaint and that use of the pre -complaint EEO process does not constitute
an election. Thus, even assuming arguendo that Complainant initiated EEO contact in February 2023; this would not indicate an election of the EE O process because Complainant did not file
his formal EEO complaint until May 27, 2023. As set forth above, Complainant filed a
grievance o n March 1, 2023. T hus, Complainant elected to pursue the grievance process
regarding this matter. To the extent Complainant asserts that the Agency did not inform him of the need to elect only one forum, Commission regulations provide for the dismissal of a complaint when the same matter has been previously raised in the grievance process irrespective of whether the agency has informed a complainant of the need to elect a forum. See 29 C.F.R. §
1614.301(a).
However, we find that the Agency improperly dismissed the denial of a reasonable accommodation claim, subsequent to the date of the Agency’s grievance decision, because the
Agency’s obligation to provide a reasonable accommodation is ongoing each time the employee needs it.
3 On appeal, Complainant asserts this matter is ongoing and submits a copy of a letter
dated May 26, 2023, one day prior to filing his formal EEO complaint, from a doctor setting forth that Complainant has anxiety and limits hi s ability to work when near other people. Based
on the foregoing, we remand Complainant’s denial of a reasonable accommodation claim from May 23, 2023 (subsequent to the grievance decision) to present. Dismissal of Claims 7 -9, 10c -z
The regulation set f orth at 29 C.F.R. § 1614.107(a)(2) states, in pertinent part, that an agency
shall dismiss a complaint which raises a matter that has not been brought to the attention of an EEO Counselor, and is not like or related to a matter on which the complainant has received
counseling.
3 An individual’s medical condition and need for an accommodation may change over time.
A later claim or complaint is "like or related" to the original complaint if the later claim or
complaint adds to or clarifies the original complain t and could have reasonably been expected to
grow out of the original complaint durin g the investigation. See Scher v. U.S. Postal Serv.,
EEOC Request No. 05940702 (May 30, 1995); Calhoun v. U.S. Postal Serv., EEOC Request No.
05891068 (Mar. 8, 1990). We find that the Agency properly dismissed claims 8 -9 and 10c -z for not raising these matters
with an EEO Counselor and not being like or related to the matters raised during EEO Counseling. We acknowledge that the record contains a document entitled Compl aint Intake
Form dated March 2, 2023 for Complainant. Therein, Complainant listed various claims, including harassment, non- selection, assignment of duties etc. Complainant had his first
interview with the EEO Counselor on March 9, 2023, subsequent to t he completion of the March
2, 2023 Complaint Intake Form. However, t he EEO Counselor ’s Report reflects that
Complainant was only counseled on one issue with the EEO Counselor, that his request for a reasonable accommodation for full -time telework was deni ed. According to the EEO
Counselor’s Report, the only remedy Complainant was seeking was “permanent remote work.”
In addition, in section 20 of the formal complaint form, Complainant set forth that he did not
discuss all actions raised with an EEO Counselor and merely stated “I contacted management.”
Finally, in an email dated June 7, 2023 from an Agency EEO Specialist to Complainant’s EEO
Counselor, the EEO Specialist set forth the various claims in Complainant’s formal complaint and asked whether Complainant raised any of these matters during EEO Counseling. The EEO Counselor responded via email on June 7, 2023. Therein, the EEO Counselor set forth that “[w]e
did review the information in the intake documents that were provided to me. However,
[Comp lainant] was steadfast in his belief that his claim was specific to the Agency requiring him
to return to the building, [Complainant] confirmed the following statement fully captured his
claim:
[He] alleges being subjected to discrimination based on…on or around October 2022, and continuing to the present , even though [he] submitted medical
documentation regarding his underlying medical conditions associated with higher risk COVID -19, [his] request to remote work as a reasonable
accommodation was denied.
Complainant, on appeal, does not contest this statement from the EEO Counselor. Based on the
foregoing, we find that Complainant only raised the issue of the denial of full telework as a reasonable accommodation during EEO Counseling. Thus we find claim s 8-9 and 10c -z were
not raised during EEO Counseling and are not like or related to the matters raised during EEO
Counseling.
4 On Section 16 of the formal complaint form, the only remedial action listed by Complainant
was “continue to telework.”
We find , however, that claim (7), that Complainant was issued a reprimand for failure to return
to work in the office, is like or related to his denial of a reasonable accommodation claim
pertaining to full -time telework on which he received EEO Counseling. We find that claim (7)
could have been reasonably expected to grow out of an investigation of Complainant’s claim of being denied full -time telework as a reasonable accommodation.
Dismissal of Claims 2 -6, 10a- b
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 Counsel or within forty -five
(45) days of the date of the matter alleged to be discriminatory or, in the case of a personnel
action, within forty -five (45) days of the effective date of the action. The Commission has
adopted a "reasonable suspicion" standard (as opposed to a "supportive facts" standard) to determine when the forty -five (45) day limitation period is triggered. See Howard v. Dep’t of
the Navy, EEOC Request No. 05970852 (Feb. 11, 1999). Thus, the time limitation is not
triggered until a complainant reasonably suspects discrimination, but before all the facts that
support a charge of discrimination have become apparent.
EEOC Regulations provide that the agency or the Commission shall extend the time limits when the individual shows that he was not notified of the time limits and was not otherwise aware of them, that h e 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 c ontrol from contacting the Counselor within the time limits, or for other reasons
considered sufficient by the agency or the Commission.
We find that the Agency properly dismissed the above referenced claims for untimely EEO Counselor contact. According to the EEO Counselor’s Report, Complainant initiated EEO
contact on March 7, 2023. On appeal, Complainant asserts he initiated EEO contact in February 2023. Both of these EEO contact dates occurred more than 45 days from the dates of the alleged inciden ts. We further find that Complainant has not set forth su fficient justification for an
extension of the applicable time limit.
To the extent, Complainant asserts, on appeal, that we should extend the applicable time limit in
this matter because he was ex periencing stress, we disagree. When a complainant claims that a
physical condition prevents him from meeting a particular filing deadline, we have held that in order to justify an untimely filing, a complainant must be so incapacitated by the condition a s to
render him physically unable to make a timely filing. See Zelmer v. U.S. Postal Serv ., EEOC
Request No. 05980164 (March 8, 1989). The same is true regarding claims of incapacity related to psychiatric or psychological conditions. See Crear v. U.S. Postal Serv ., EEOC Request No.
05920700 (Oct. 29, 1992). The record is devoid of evidence that Complainant was so incapacitated during the relevant time periods to prevent him from timely contacting an EEO Counselor.
Dismissal of Claims 10aa- cc
The re gulation 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 b ecause of race, color, religion, sex, national origin, age or
disab ility. 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 privilege of employment for which there is a remedy. Diaz v. Dep’t of the
Air Force , EEOC Request No. 05931049 (Apr. 21, 1994).
We find that the Agency properly dismissed clai ms 10aa -10bb, manag ement congratulating a
new employee who worked in the office and Complainant providing documentation pertaining his alleged disability, for failure to state a claim. We find that these matters do not establish a harm or loss with respec t to a term, condition, or privilege of his employment. We further find
that these matters are not sufficiently severe or pervasive to set forth an actionable claim of harassment. Finally, regarding the basi s of reprisal, we find that these alleged incid ents are not
reasonably likely to deter Complainant or others from engaging in protected EEO activity.
Regarding claim 10cc, that in M arch 2023 another Legal Assistant was hired at the GS -7 level
while he was hired as a GS -6, Complainant appears to be all eging a discriminatory pay claim.
While the Agency dismissed this matter for failure to state a claim, we find that this matter, a discriminatory pay claim, is more properly dismissed for failure to raise this matter with an EEO
Counselor and not being li ke or related to the matter raised during EEO Counseling. As set forth
above, we found that the sole claim Complainant raised during E EO Counseling was a denial of
a reasonable accommodation for full- time telework.
CONCLUSION
We REVERSE the Agency’s dis missal of claim (1)- denial of a reasonable accommodation
claim , solely for the period subsequent to the Agency’s grievance decision dat ed May 22, 2023-
present and claim (7) -Complainant being issued a reprimand for failure to return to work in the
office. We AFFIRM the Agency’s dismissal of the remainder of the formal complaint.
ORDER (E0618)
The Agency is ordered to process the remanded claims (1 as defined above and 7) 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 reques ts a final decision without a hearing, the Agency shall issue a final decision
within s ixty (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 Comp liance 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 rights, and 3) either a copy of the complainant’s request for a hearing, a copy of compl ainant’s request for a FAD, or a statement from the agency that it did
not receive a re sponse 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 seven (7) calendar days of the completion of each ordered
corrective action, the Agency shall submit via the Federal Sector EEO Portal (F edSEP)
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 repor t 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 th e 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 com plaint 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 e nforcement 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 r eport 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 Offic e 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 Complainant or the
Agency submit s 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 polic ies, practices, or
operations of the agency.
Requests for reconsideration must be fil ed with EEOC’s Office of Federal Operations (OFO)
within thirty (30) calendar days of receipt of this decision. If the party requesting
reconsideration elects to file a statement or brief in support of the request, that statement or brief must be filed 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 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 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,
Washing ton, 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 othe r 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 (T0610)
This decision affirms the Agency’s final decision/action in part, but it also requires the Agency to continue its administrative processing of a portion of your complaint. You have the right to
file a civil action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision on both that portion of your complaint which
the Commis sion 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 off icial 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 offi ce, 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 ci vil 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 re quests. Such requests do not a lter
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 6, 2023
Date | [
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"Howard v. Dep’t of the Navy, EEOC Request No. 05970852 (Feb. 11, 1999)",
"Zelmer v. U.S. Postal Serv ., EEOC Request No. 05980164 (March 8, 1989)",
"Crear v. U.S... | [
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109 | https://www.eeoc.gov/sites/default/files/migrated_files/decisions/0120081448.txt | 0120081448.txt | TXT | text/plain | 9,059 | Kendra L. Nettles, Complainant, v. Ed Schafer, Secretary, Department of Agriculture, Agency. | December 18, 2007 | Appeal Number: 0120081448
Final Decision:
Accordingly, the FAD is affirmed. | Kendra L. Nettles,
Complainant,
v.
Ed Schafer,
Secretary,
Department of Agriculture,
Agency.
Appeal No. 0120081448
Agency No. OIG-2007-00738
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dated December 18, 2007, 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, a criminal investigator, alleged that she was
subjected to discrimination on the bases of race (African-American)1
and sex (female) when:
1. her supervisor does not discuss assignments nor get her input prior
to giving her assignments;
2. she was not told office locks were changed, and her door lock was
not changed;
3. pictures of "Barney Fife Lawman" were placed on all office doors but
hers;
4. when the group goes to lunch, she is not asked to attend;
5. she was not invited to a co-worker's house painting party;
6. she was chastised by her supervisor when he did not know her
whereabouts;
7. she is generally not included in office decisions and activities;
8. she was not asked if she would like to attend retirement training;
9. her name was put in for training on dates she was on approved leave;
10. she was required to explain why she was taking leave;
11. her firearms target scores were determined disparately;
12. her actions at the firearms range were questioned; and
13. when she complained to her supervisor, he told her "guys will be
guys."
Complainant initiated contact with an EEO counselor on June 1, 2007.
The EEO counselor wrote in his signed report that complainant refused to
identify her protected bases and her allegations. The counselor wrote
that he talked to complainant over the telephone on June 13 and 14, 2007,
but she refused to give basic complaint information, saying she wanted to
think about her case.2 The counselor wrote that he left complainant
a voicemail on June 18, 2007, and she did not return the call, and sent
her an e-mail on June 19, 2007, again requesting EEO bases and issues,
but complainant did not respond. The June 19, 2007, e-mail asked for
complainant to send a summary of her "complaint" including EEO basis,
issues, dates discrimination occurred, and remedy sought.3 The counselor
wrote that on June 25, 2007, he sent another e-mail to complainant
attempting to elicit actionable complaint information, warning that
failure to do so or cooperate could result in the agency dismissing her
case for failure to prosecute. Complainant was given until June 27,
2007, to respond, but she did not contact the EEO counselor.
Pursuant to 29 C.F.R. § 1614.105(d), the agency mailed complainant a
notice of right to file an EEO complaint, which she received on June
30, 2007. Complainant filed her complaint on July 14, 2007. The FAD
dismissed the complaint for raising matters that were not brought to
the attention of an EEO counselor nor were like or related to a matter
that was brought to the attention of a counselor, i.e., complainant
had not brought any claims before the EEO counselor. 29 C.F.R. §
1614.107(a)(2).
On appeal, complainant concedes that she did not provide the EEO counselor
any information about herself in their June 13, 2007, conversation,
and that the EEO counselor explained the EEO process to her on June
14, 2007. She contends that in these conversations the EEO counselor
did not directly ask her about her claim issues and bases. She writes
she did not learn the EEO counselor attempted to contact her again until
July 2, 2007, when she went through almost 30 messages on her voicemail.
She writes that the EEO counselor e-mailed her regarding her complaint,
but she did not read the e-mails until July 2, 2007. She writes that
during this time, she was out of the office and away from her computer
often. She concedes, however, that she did not feel comfortable talking
to the EEO counselor, and that she noticed his e-mails, but was not
enthused about opening them.
We find that the preponderance of the evidence supports the EEO
counselor's account that he provided complainant numerous opportunities
to discuss her claims with him, and she refused to do so. Complainant
concedes that she did not feel comfortable talking to the EEO counselor,
and noticed his e-mails but was not enthused about opening them. The FAD
properly dismissed the complaint under 29 C.F.R. § 1614.107(a)(2).4
Accordingly, the FAD is affirmed.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0408)
The Commission may, in its discretion, reconsider the decision in this
case if the complainant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. The appellate decision involved a clearly erroneous interpretation
of material fact or law; or
2. The appellate decision will have a substantial impact on the
policies, practices, or operations of the agency.
Requests to reconsider, with supporting statement or brief, must be filed
with the Office of Federal Operations (OFO) within thirty (30) calendar
days of receipt of this decision or within twenty (20) calendar days of
receipt of another party's timely request for reconsideration. See 29
C.F.R. § 1614.405; Equal Employment Opportunity Management Directive for
29 C.F.R. Part 1614 (EEO MD-110), 9-18 (November 9, 1999). All requests
and arguments must be submitted to the Director, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 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
June 11, 2008
__________________
Date
1 Complainant did not identify her race until the appeal.
2 He added that complainant previously refused to provide another EEO
counselor basic EEO information. According to the FAD, after this,
the agency utilized the above EEO counselor.
3 The e-mail contained an attachment giving complainant an opportunity
to extend the time limit for counseling, since the time limit within
which to conduct the final interview (close counseling), was to expire
on July 1, 2007. On appeal, complainant concedes that she did not timely
request an extension, and does not indicate she asked for one.
4 As we affirm the dismissal for this reason, we do not address whether
the complaint failed to state a claim.
??
??
??
??
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
| [
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110 | https://www.eeoc.gov/sites/default/files/decisions/2020_12_07/2020003195.pdf | 2020003195.pdf | PDF | application/pdf | 9,456 | Herschel T ., Complainant, v. Elaine L. Chao, Secretary, Department of Transportation (Federal Aviation Administration), Agency. | March 26, 2020 | Appeal Number: 2020003195
Background:
During the period at issue, Complainant was employed as a Transportation Operation Supervisor ,
ES-17, by another federal agency .
On November 22, 2019, Complainant initiated EEO Counselor contact. Informal efforts at
resolution were not successful. On February 27, 2020, Complainant filed a formal complaint
claim ing that the Agency subjected him to discrimination based on religion (Muslim) when:
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 2020003195
1. On September 16, 2019, Complainant was notified of his non- selection for the position of
Air Traffic Control Specialist – Trainee, vacancy announcement N o. FAA -ATO- 19-
ALLSRCE -61676;
2. On or about September 29, 2018, Complainant was notified of his non- selection for
vacancy announcement No. FAA -ATO- 18-ALLSRCE 5779 2; and
3. On or about September 14, 2017, Complainant was notified of his non- selection for
vacancy announcement No. FAA -ATO- 17-ALLSRCE- 53474.
In a March 26, 2020 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 November 22, 2019, which it found to be
beyond the 45- day limitation period , as the most recent alleged incident occurred on September
16, 2019. The instant appeal followed.
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
During the period at issue, Complainant was employed as a Transportation Operation Supervisor ,
ES-17, by another federal agency .
On November 22, 2019, Complainant initiated EEO Counselor contact. Informal efforts at
resolution were not successful. On February 27, 2020, Complainant filed a formal complaint
claim ing that the Agency subjected him to discrimination based on religion (Muslim) when:
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 2020003195
1. On September 16, 2019, Complainant was notified of his non- selection for the position of
Air Traffic Control Specialist – Trainee, vacancy announcement N o. FAA -ATO- 19-
ALLSRCE -61676;
2. On or about September 29, 2018, Complainant was notified of his non- selection for
vacancy announcement No. FAA -ATO- 18-ALLSRCE 5779 2; and
3. On or about September 14, 2017, Complainant was notified of his non- selection for
vacancy announcement No. FAA -ATO- 17-ALLSRCE- 53474.
In a March 26, 2020 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 November 22, 2019, which it found to be
beyond the 45- day limitation period , as the most recent alleged incident occurred on September
16, 2019. 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 EEO 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) d ays
of the effective date of the action.
As an initial matter, we must first address inconsistent dates provided in the record regarding the
date of initial EEO Counselor contact. The EEO Counselor ’s report state s that Complainant made
initial contact on November 22, 2019, but later refers to an “intake interview ” on November 14,
2019. It is unclear whether or not the November 14 date was an inadvertent error on the part of
the Counselor as on all other parts of t he counseling report the initial contact date is listed as
November 22, 2019. Moreover, on other Agency documents, the November 22 date is referenced.
First, and most persuasive, a December 16, 2019 Agency Memorandum for the Request for
Extension of EEO Counseling , signed by Complainant , lists the initial EEO Counselor contact date
as November 22, 2019. The s econd is the final decision itself, which lists the initial EEO contact
date as November 22, 2019. Finally, the Agency’s June 18, 2020 response to Complainant’s appeal
also lists Complainant’s EEO Counselor contact as November 22, 2019. However, we find that
even if the initial contact did occur on November 14, 2019, it would nevertheless remain untimely made. Finally, we note that while at one point , Complainant identifies his initial EEO Counselor
contact as October 30, 2019, this claim is unsupported by any evidence and at other points in the record Complainant himself acknowledged the initial EEO contact date as November 22, 2019.
As discussed above, Complainant did not make initial contact with the EEO Counselor until most
likely November 22, 2019, and no earlier than November 14, 2019. This initial EEO contact date
is more than 45- days after Complainant’s latest non-selection on September 16, 2019.
3 2020003195
Complainant had 45- days from the date he knew of his non- selection , which ended on October 31,
2019, to make timely EEO Counselor contact. The other two incidents of non- selection , on
September 29, 2018 and September 14, 2017, were each more than a year and two -years,
respectively, beyond the time limit for EEO Counselor contact. On appeal Complainant presented
no persuasive arguments or evidence warranting an extension of the time limit for initiating EEO
Counselor contact.
The Agency’s final decision dismissing the formal complaint for untimely EEO Counselor contact
is AFFIRMED. | Herschel T .,
Complainant,
v.
Elaine L. Chao,
Secretary,
Department of Transportation
(Federal Aviation Administration),
Agency.
Appeal No. 2020003195
Agency No. 2020-28661- FAA -04
DECISION
Complainant filed a timely appeal with the Equal Emplo yment Opportunity Commission (EEOC
or Commission) from the Agency ’s decision dated March 26, 2020, dismissing a 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
During the period at issue, Complainant was employed as a Transportation Operation Supervisor ,
ES-17, by another federal agency .
On November 22, 2019, Complainant initiated EEO Counselor contact. Informal efforts at
resolution were not successful. On February 27, 2020, Complainant filed a formal complaint
claim ing that the Agency subjected him to discrimination based on religion (Muslim) when:
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 2020003195
1. On September 16, 2019, Complainant was notified of his non- selection for the position of
Air Traffic Control Specialist – Trainee, vacancy announcement N o. FAA -ATO- 19-
ALLSRCE -61676;
2. On or about September 29, 2018, Complainant was notified of his non- selection for
vacancy announcement No. FAA -ATO- 18-ALLSRCE 5779 2; and
3. On or about September 14, 2017, Complainant was notified of his non- selection for
vacancy announcement No. FAA -ATO- 17-ALLSRCE- 53474.
In a March 26, 2020 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 November 22, 2019, which it found to be
beyond the 45- day limitation period , as the most recent alleged incident occurred on September
16, 2019. 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 EEO 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) d ays
of the effective date of the action.
As an initial matter, we must first address inconsistent dates provided in the record regarding the
date of initial EEO Counselor contact. The EEO Counselor ’s report state s that Complainant made
initial contact on November 22, 2019, but later refers to an “intake interview ” on November 14,
2019. It is unclear whether or not the November 14 date was an inadvertent error on the part of
the Counselor as on all other parts of t he counseling report the initial contact date is listed as
November 22, 2019. Moreover, on other Agency documents, the November 22 date is referenced.
First, and most persuasive, a December 16, 2019 Agency Memorandum for the Request for
Extension of EEO Counseling , signed by Complainant , lists the initial EEO Counselor contact date
as November 22, 2019. The s econd is the final decision itself, which lists the initial EEO contact
date as November 22, 2019. Finally, the Agency’s June 18, 2020 response to Complainant’s appeal
also lists Complainant’s EEO Counselor contact as November 22, 2019. However, we find that
even if the initial contact did occur on November 14, 2019, it would nevertheless remain untimely made. Finally, we note that while at one point , Complainant identifies his initial EEO Counselor
contact as October 30, 2019, this claim is unsupported by any evidence and at other points in the record Complainant himself acknowledged the initial EEO contact date as November 22, 2019.
As discussed above, Complainant did not make initial contact with the EEO Counselor until most
likely November 22, 2019, and no earlier than November 14, 2019. This initial EEO contact date
is more than 45- days after Complainant’s latest non-selection on September 16, 2019.
3 2020003195
Complainant had 45- days from the date he knew of his non- selection , which ended on October 31,
2019, to make timely EEO Counselor contact. The other two incidents of non- selection , on
September 29, 2018 and September 14, 2017, were each more than a year and two -years,
respectively, beyond the time limit for EEO Counselor contact. On appeal Complainant presented
no persuasive arguments or evidence warranting an extension of the time limit for initiating EEO
Counselor contact.
The Agency’s final decision dismissing the formal complaint for 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 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 w ill 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 ex piration
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).
4 2020003195
COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION (S06 10)
You have the right to file a civil action in an appropriate United States District Court within ninety
(90) calendar days from the date that you receive this decision. If you file a civil action, you must
name as the defendant in the complaint the person who is the official Agency head or department head, identifying that person by his or her full name and official title. Failure to do so may result in the dismissal of your case in court. “Agency” or “department” means the national organization, and not the local office, facility or department in which you work. If you file a request to reconsider and also file a civil act ion, filing a civil action will terminate the administrative processing of
your complaint .
RIGHT TO REQUEST COUNSEL (Z0815)
If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of cour t costs or
appointment of an attorney directly to the court, not the Commission. The court has the sole
discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph 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 18, 2020
Date | [
"29 C.F.R. § 1614.107(a)",
"29 C.F.R. § 1614.105(a)",
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"29 C.F.R. § 1614.403(g)",
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111 | https://www.eeoc.gov/sites/default/files/decisions/2021_01_25/2020003195.pdf | 2020003195.pdf | PDF | application/pdf | 9,456 | Herschel T ., Complainant, v. Elaine L. Chao, Secretary, Department of Transportation (Federal Aviation Administration), Agency. | March 26, 2020 | Appeal Number: 2020003195
Background:
During the period at issue, Complainant was employed as a Transportation Operation Supervisor ,
ES-17, by another federal agency .
On November 22, 2019, Complainant initiated EEO Counselor contact. Informal efforts at
resolution were not successful. On February 27, 2020, Complainant filed a formal complaint
claim ing that the Agency subjected him to discrimination based on religion (Muslim) when:
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 2020003195
1. On September 16, 2019, Complainant was notified of his non- selection for the position of
Air Traffic Control Specialist – Trainee, vacancy announcement N o. FAA -ATO- 19-
ALLSRCE -61676;
2. On or about September 29, 2018, Complainant was notified of his non- selection for
vacancy announcement No. FAA -ATO- 18-ALLSRCE 5779 2; and
3. On or about September 14, 2017, Complainant was notified of his non- selection for
vacancy announcement No. FAA -ATO- 17-ALLSRCE- 53474.
In a March 26, 2020 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 November 22, 2019, which it found to be
beyond the 45- day limitation period , as the most recent alleged incident occurred on September
16, 2019. The instant appeal followed.
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
During the period at issue, Complainant was employed as a Transportation Operation Supervisor ,
ES-17, by another federal agency .
On November 22, 2019, Complainant initiated EEO Counselor contact. Informal efforts at
resolution were not successful. On February 27, 2020, Complainant filed a formal complaint
claim ing that the Agency subjected him to discrimination based on religion (Muslim) when:
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 2020003195
1. On September 16, 2019, Complainant was notified of his non- selection for the position of
Air Traffic Control Specialist – Trainee, vacancy announcement N o. FAA -ATO- 19-
ALLSRCE -61676;
2. On or about September 29, 2018, Complainant was notified of his non- selection for
vacancy announcement No. FAA -ATO- 18-ALLSRCE 5779 2; and
3. On or about September 14, 2017, Complainant was notified of his non- selection for
vacancy announcement No. FAA -ATO- 17-ALLSRCE- 53474.
In a March 26, 2020 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 November 22, 2019, which it found to be
beyond the 45- day limitation period , as the most recent alleged incident occurred on September
16, 2019. 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 EEO 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) d ays
of the effective date of the action.
As an initial matter, we must first address inconsistent dates provided in the record regarding the
date of initial EEO Counselor contact. The EEO Counselor ’s report state s that Complainant made
initial contact on November 22, 2019, but later refers to an “intake interview ” on November 14,
2019. It is unclear whether or not the November 14 date was an inadvertent error on the part of
the Counselor as on all other parts of t he counseling report the initial contact date is listed as
November 22, 2019. Moreover, on other Agency documents, the November 22 date is referenced.
First, and most persuasive, a December 16, 2019 Agency Memorandum for the Request for
Extension of EEO Counseling , signed by Complainant , lists the initial EEO Counselor contact date
as November 22, 2019. The s econd is the final decision itself, which lists the initial EEO contact
date as November 22, 2019. Finally, the Agency’s June 18, 2020 response to Complainant’s appeal
also lists Complainant’s EEO Counselor contact as November 22, 2019. However, we find that
even if the initial contact did occur on November 14, 2019, it would nevertheless remain untimely made. Finally, we note that while at one point , Complainant identifies his initial EEO Counselor
contact as October 30, 2019, this claim is unsupported by any evidence and at other points in the record Complainant himself acknowledged the initial EEO contact date as November 22, 2019.
As discussed above, Complainant did not make initial contact with the EEO Counselor until most
likely November 22, 2019, and no earlier than November 14, 2019. This initial EEO contact date
is more than 45- days after Complainant’s latest non-selection on September 16, 2019.
3 2020003195
Complainant had 45- days from the date he knew of his non- selection , which ended on October 31,
2019, to make timely EEO Counselor contact. The other two incidents of non- selection , on
September 29, 2018 and September 14, 2017, were each more than a year and two -years,
respectively, beyond the time limit for EEO Counselor contact. On appeal Complainant presented
no persuasive arguments or evidence warranting an extension of the time limit for initiating EEO
Counselor contact.
The Agency’s final decision dismissing the formal complaint for untimely EEO Counselor contact
is AFFIRMED. | Herschel T .,
Complainant,
v.
Elaine L. Chao,
Secretary,
Department of Transportation
(Federal Aviation Administration),
Agency.
Appeal No. 2020003195
Agency No. 2020-28661- FAA -04
DECISION
Complainant filed a timely appeal with the Equal Emplo yment Opportunity Commission (EEOC
or Commission) from the Agency ’s decision dated March 26, 2020, dismissing a 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
During the period at issue, Complainant was employed as a Transportation Operation Supervisor ,
ES-17, by another federal agency .
On November 22, 2019, Complainant initiated EEO Counselor contact. Informal efforts at
resolution were not successful. On February 27, 2020, Complainant filed a formal complaint
claim ing that the Agency subjected him to discrimination based on religion (Muslim) when:
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 2020003195
1. On September 16, 2019, Complainant was notified of his non- selection for the position of
Air Traffic Control Specialist – Trainee, vacancy announcement N o. FAA -ATO- 19-
ALLSRCE -61676;
2. On or about September 29, 2018, Complainant was notified of his non- selection for
vacancy announcement No. FAA -ATO- 18-ALLSRCE 5779 2; and
3. On or about September 14, 2017, Complainant was notified of his non- selection for
vacancy announcement No. FAA -ATO- 17-ALLSRCE- 53474.
In a March 26, 2020 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 November 22, 2019, which it found to be
beyond the 45- day limitation period , as the most recent alleged incident occurred on September
16, 2019. 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 EEO 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) d ays
of the effective date of the action.
As an initial matter, we must first address inconsistent dates provided in the record regarding the
date of initial EEO Counselor contact. The EEO Counselor ’s report state s that Complainant made
initial contact on November 22, 2019, but later refers to an “intake interview ” on November 14,
2019. It is unclear whether or not the November 14 date was an inadvertent error on the part of
the Counselor as on all other parts of t he counseling report the initial contact date is listed as
November 22, 2019. Moreover, on other Agency documents, the November 22 date is referenced.
First, and most persuasive, a December 16, 2019 Agency Memorandum for the Request for
Extension of EEO Counseling , signed by Complainant , lists the initial EEO Counselor contact date
as November 22, 2019. The s econd is the final decision itself, which lists the initial EEO contact
date as November 22, 2019. Finally, the Agency’s June 18, 2020 response to Complainant’s appeal
also lists Complainant’s EEO Counselor contact as November 22, 2019. However, we find that
even if the initial contact did occur on November 14, 2019, it would nevertheless remain untimely made. Finally, we note that while at one point , Complainant identifies his initial EEO Counselor
contact as October 30, 2019, this claim is unsupported by any evidence and at other points in the record Complainant himself acknowledged the initial EEO contact date as November 22, 2019.
As discussed above, Complainant did not make initial contact with the EEO Counselor until most
likely November 22, 2019, and no earlier than November 14, 2019. This initial EEO contact date
is more than 45- days after Complainant’s latest non-selection on September 16, 2019.
3 2020003195
Complainant had 45- days from the date he knew of his non- selection , which ended on October 31,
2019, to make timely EEO Counselor contact. The other two incidents of non- selection , on
September 29, 2018 and September 14, 2017, were each more than a year and two -years,
respectively, beyond the time limit for EEO Counselor contact. On appeal Complainant presented
no persuasive arguments or evidence warranting an extension of the time limit for initiating EEO
Counselor contact.
The Agency’s final decision dismissing the formal complaint for 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 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 w ill 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 ex piration
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).
4 2020003195
COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION (S06 10)
You have the right to file a civil action in an appropriate United States District Court within ninety
(90) calendar days from the date that you receive this decision. If you file a civil action, you must
name as the defendant in the complaint the person who is the official Agency head or department head, identifying that person by his or her full name and official title. Failure to do so may result in the dismissal of your case in court. “Agency” or “department” means the national organization, and not the local office, facility or department in which you work. If you file a request to reconsider and also file a civil act ion, filing a civil action will terminate the administrative processing of
your complaint .
RIGHT TO REQUEST COUNSEL (Z0815)
If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of cour t costs or
appointment of an attorney directly to the court, not the Commission. The court has the sole
discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph 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 18, 2020
Date | [
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112 | https://www.eeoc.gov/sites/default/files/decisions/2021_01_19/2020003195.pdf | 2020003195.pdf | PDF | application/pdf | 9,456 | Herschel T ., Complainant, v. Elaine L. Chao, Secretary, Department of Transportation (Federal Aviation Administration), Agency. | March 26, 2020 | Appeal Number: 2020003195
Background:
During the period at issue, Complainant was employed as a Transportation Operation Supervisor ,
ES-17, by another federal agency .
On November 22, 2019, Complainant initiated EEO Counselor contact. Informal efforts at
resolution were not successful. On February 27, 2020, Complainant filed a formal complaint
claim ing that the Agency subjected him to discrimination based on religion (Muslim) when:
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 2020003195
1. On September 16, 2019, Complainant was notified of his non- selection for the position of
Air Traffic Control Specialist – Trainee, vacancy announcement N o. FAA -ATO- 19-
ALLSRCE -61676;
2. On or about September 29, 2018, Complainant was notified of his non- selection for
vacancy announcement No. FAA -ATO- 18-ALLSRCE 5779 2; and
3. On or about September 14, 2017, Complainant was notified of his non- selection for
vacancy announcement No. FAA -ATO- 17-ALLSRCE- 53474.
In a March 26, 2020 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 November 22, 2019, which it found to be
beyond the 45- day limitation period , as the most recent alleged incident occurred on September
16, 2019. The instant appeal followed.
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
During the period at issue, Complainant was employed as a Transportation Operation Supervisor ,
ES-17, by another federal agency .
On November 22, 2019, Complainant initiated EEO Counselor contact. Informal efforts at
resolution were not successful. On February 27, 2020, Complainant filed a formal complaint
claim ing that the Agency subjected him to discrimination based on religion (Muslim) when:
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 2020003195
1. On September 16, 2019, Complainant was notified of his non- selection for the position of
Air Traffic Control Specialist – Trainee, vacancy announcement N o. FAA -ATO- 19-
ALLSRCE -61676;
2. On or about September 29, 2018, Complainant was notified of his non- selection for
vacancy announcement No. FAA -ATO- 18-ALLSRCE 5779 2; and
3. On or about September 14, 2017, Complainant was notified of his non- selection for
vacancy announcement No. FAA -ATO- 17-ALLSRCE- 53474.
In a March 26, 2020 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 November 22, 2019, which it found to be
beyond the 45- day limitation period , as the most recent alleged incident occurred on September
16, 2019. 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 EEO 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) d ays
of the effective date of the action.
As an initial matter, we must first address inconsistent dates provided in the record regarding the
date of initial EEO Counselor contact. The EEO Counselor ’s report state s that Complainant made
initial contact on November 22, 2019, but later refers to an “intake interview ” on November 14,
2019. It is unclear whether or not the November 14 date was an inadvertent error on the part of
the Counselor as on all other parts of t he counseling report the initial contact date is listed as
November 22, 2019. Moreover, on other Agency documents, the November 22 date is referenced.
First, and most persuasive, a December 16, 2019 Agency Memorandum for the Request for
Extension of EEO Counseling , signed by Complainant , lists the initial EEO Counselor contact date
as November 22, 2019. The s econd is the final decision itself, which lists the initial EEO contact
date as November 22, 2019. Finally, the Agency’s June 18, 2020 response to Complainant’s appeal
also lists Complainant’s EEO Counselor contact as November 22, 2019. However, we find that
even if the initial contact did occur on November 14, 2019, it would nevertheless remain untimely made. Finally, we note that while at one point , Complainant identifies his initial EEO Counselor
contact as October 30, 2019, this claim is unsupported by any evidence and at other points in the record Complainant himself acknowledged the initial EEO contact date as November 22, 2019.
As discussed above, Complainant did not make initial contact with the EEO Counselor until most
likely November 22, 2019, and no earlier than November 14, 2019. This initial EEO contact date
is more than 45- days after Complainant’s latest non-selection on September 16, 2019.
3 2020003195
Complainant had 45- days from the date he knew of his non- selection , which ended on October 31,
2019, to make timely EEO Counselor contact. The other two incidents of non- selection , on
September 29, 2018 and September 14, 2017, were each more than a year and two -years,
respectively, beyond the time limit for EEO Counselor contact. On appeal Complainant presented
no persuasive arguments or evidence warranting an extension of the time limit for initiating EEO
Counselor contact.
The Agency’s final decision dismissing the formal complaint for untimely EEO Counselor contact
is AFFIRMED. | Herschel T .,
Complainant,
v.
Elaine L. Chao,
Secretary,
Department of Transportation
(Federal Aviation Administration),
Agency.
Appeal No. 2020003195
Agency No. 2020-28661- FAA -04
DECISION
Complainant filed a timely appeal with the Equal Emplo yment Opportunity Commission (EEOC
or Commission) from the Agency ’s decision dated March 26, 2020, dismissing a 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
During the period at issue, Complainant was employed as a Transportation Operation Supervisor ,
ES-17, by another federal agency .
On November 22, 2019, Complainant initiated EEO Counselor contact. Informal efforts at
resolution were not successful. On February 27, 2020, Complainant filed a formal complaint
claim ing that the Agency subjected him to discrimination based on religion (Muslim) when:
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 2020003195
1. On September 16, 2019, Complainant was notified of his non- selection for the position of
Air Traffic Control Specialist – Trainee, vacancy announcement N o. FAA -ATO- 19-
ALLSRCE -61676;
2. On or about September 29, 2018, Complainant was notified of his non- selection for
vacancy announcement No. FAA -ATO- 18-ALLSRCE 5779 2; and
3. On or about September 14, 2017, Complainant was notified of his non- selection for
vacancy announcement No. FAA -ATO- 17-ALLSRCE- 53474.
In a March 26, 2020 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 November 22, 2019, which it found to be
beyond the 45- day limitation period , as the most recent alleged incident occurred on September
16, 2019. 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 EEO 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) d ays
of the effective date of the action.
As an initial matter, we must first address inconsistent dates provided in the record regarding the
date of initial EEO Counselor contact. The EEO Counselor ’s report state s that Complainant made
initial contact on November 22, 2019, but later refers to an “intake interview ” on November 14,
2019. It is unclear whether or not the November 14 date was an inadvertent error on the part of
the Counselor as on all other parts of t he counseling report the initial contact date is listed as
November 22, 2019. Moreover, on other Agency documents, the November 22 date is referenced.
First, and most persuasive, a December 16, 2019 Agency Memorandum for the Request for
Extension of EEO Counseling , signed by Complainant , lists the initial EEO Counselor contact date
as November 22, 2019. The s econd is the final decision itself, which lists the initial EEO contact
date as November 22, 2019. Finally, the Agency’s June 18, 2020 response to Complainant’s appeal
also lists Complainant’s EEO Counselor contact as November 22, 2019. However, we find that
even if the initial contact did occur on November 14, 2019, it would nevertheless remain untimely made. Finally, we note that while at one point , Complainant identifies his initial EEO Counselor
contact as October 30, 2019, this claim is unsupported by any evidence and at other points in the record Complainant himself acknowledged the initial EEO contact date as November 22, 2019.
As discussed above, Complainant did not make initial contact with the EEO Counselor until most
likely November 22, 2019, and no earlier than November 14, 2019. This initial EEO contact date
is more than 45- days after Complainant’s latest non-selection on September 16, 2019.
3 2020003195
Complainant had 45- days from the date he knew of his non- selection , which ended on October 31,
2019, to make timely EEO Counselor contact. The other two incidents of non- selection , on
September 29, 2018 and September 14, 2017, were each more than a year and two -years,
respectively, beyond the time limit for EEO Counselor contact. On appeal Complainant presented
no persuasive arguments or evidence warranting an extension of the time limit for initiating EEO
Counselor contact.
The Agency’s final decision dismissing the formal complaint for 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 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 w ill 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 ex piration
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).
4 2020003195
COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION (S06 10)
You have the right to file a civil action in an appropriate United States District Court within ninety
(90) calendar days from the date that you receive this decision. If you file a civil action, you must
name as the defendant in the complaint the person who is the official Agency head or department head, identifying that person by his or her full name and official title. Failure to do so may result in the dismissal of your case in court. “Agency” or “department” means the national organization, and not the local office, facility or department in which you work. If you file a request to reconsider and also file a civil act ion, filing a civil action will terminate the administrative processing of
your complaint .
RIGHT TO REQUEST COUNSEL (Z0815)
If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of cour t costs or
appointment of an attorney directly to the court, not the Commission. The court has the sole
discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph 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 18, 2020
Date | [
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"29 C.F.R. § 1614.403(g)",
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113 | https://www.eeoc.gov/sites/default/files/migrated_files/decisions/01a42435_r.txt | 01a42435_r.txt | TXT | text/plain | 8,086 | Jessica J. Brown v. United States Postal Service 01A42435 June 15, 2004 . Jessica J. Brown, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency. | June 15, 2004 | Appeal Number: 01A42435
Legal Analysis:
The Commission has held that individuals using the EEO process 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). Under the
doctrine of laches, an individual's failure to diligently pursue his or
her legal remedies can result in the barring of the claims. The record
reveals that although complainant initially contacted the EEO Office in
December 2000, she did not again initiate contact with an EEO Counselor
until October 24, 2003, nearly three years after her first EEO contact.
We therefore find that the doctrine of laches is applicable in the
instant case. Complainant has not presented sufficient argument or
evidence to justify her delay in pursuing her claims. The Commission
finds that complainant abandoned her EEO claims by not pursuing them
for almost three years after she initially contacted an EEO Counselor.
Final Decision:
Accordingly, the agency's decision dismissing complainant's complaint was proper pursuant to 29 C.F.R. § 1614.107(a)(2) and is AFFIRMED. | Jessica J. Brown v. United States Postal Service
01A42435
June 15, 2004
.
Jessica J. Brown,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A42435
Agency No. 4B-020-0008-04
DECISION
Complainant initiated contact with the agency's EEO Office on October
24, 2003. On January 20, 2004, complainant filed a formal EEO complaint
wherein she claimed that she was discriminated against on the basis
of her disability (unspecified) when effective December 5, 2000, she
was terminated during her probationary period as a Part-Time Flexible
City Carrier.
By decision dated January 28, 2004, the agency dismissed the complaint
on the grounds that complainant failed to initiate contact with an EEO
Counselor in a timely manner. The agency determined that complainant
initially sought EEO counseling on December 13, 2000, with regard to her
termination. According to the agency, on December 13, 2000, it mailed to
complainant the appropriate pre-complaint documents for her completion
and return for processing. The agency stated that these documents were
received by complainant on December 15, 2000. According to the agency,
complainant was advised to return the completed documents within ten
calendar days of her receipt, but that she failed to do so. The agency
stated that it sent via certified return receipt mail on January 8, 2001,
a letter informing complainant that if the aforementioned documents were
not received within fifteen calendar days, her request for EEO counseling
would be considered closed. The agency stated that this mailing was
returned unclaimed after delivery attempts were made on January 10,
2001, February 1, 2001, and February 6, 2001. The agency determined that
complainant suspected discrimination at the time of her termination, but
that she failed to exhibit intent to pursue her claim of discrimination.
The agency noted that complainant stated that she filed a discrimination
claim with the Massachusetts Commission Against Discrimination on April
23, 2001, and that she did not pursue the EEO process again until after
she did not receive any acknowledgment from the Massachusetts Commission
Against Discrimination.
On appeal, complainant acknowledges that she contacted the EEO Office
on December 13, 2000, concerning her termination. The agency notes that
complainant failed to pursue her claim through the EEO counseling process.
The agency argues that complainant had constructive knowledge of the
EEO process and its time limits, and she failed to exhibit an intent to
pursue the EEO process after she received the pre-complaint documents.
The record reveals that complainant was terminated from her position
effective December 5, 2000. Complainant initiated contact with an EEO
Counselor on December 13, 2000, and the EEO Office sent complainant
pre-complaint documents to complete and return. These documents were
received by complainant on December 15, 2000. Complainant, however,
failed to return these documents to the EEO Office. The agency
attempted to inform complainant via certified return receipt mail that
her request for EEO counseling would be closed if she did not contact
the agency within fifteen calendar days, but the mailing went unclaimed.
The Commission has held that individuals using the EEO process 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). Under the
doctrine of laches, an individual's failure to diligently pursue his or
her legal remedies can result in the barring of the claims. The record
reveals that although complainant initially contacted the EEO Office in
December 2000, she did not again initiate contact with an EEO Counselor
until October 24, 2003, nearly three years after her first EEO contact.
We therefore find that the doctrine of laches is applicable in the
instant case. Complainant has not presented sufficient argument or
evidence to justify her delay in pursuing her claims. The Commission
finds that complainant abandoned her EEO claims by not pursuing them
for almost three years after she initially contacted an EEO Counselor.
Accordingly, the agency's decision dismissing complainant's complaint
was proper pursuant to 29 C.F.R. § 1614.107(a)(2) and is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
The Commission may, in its discretion, reconsider the decision in this
case if the complainant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. The appellate decision involved a clearly erroneous interpretation
of material fact or law; or
2. The appellate decision will have a substantial impact on the policies,
practices, or operations of the agency.
Requests to reconsider, with supporting statement or brief, must be filed
with the Office of Federal Operations (OFO) within thirty (30) calendar
days of receipt of this decision or within twenty (20) calendar days of
receipt of another party's timely request for reconsideration. See 29
C.F.R. § 1614.405; Equal Employment Opportunity Management Directive for
29 C.F.R. Part 1614 (EEO MD-110), 9-18 (November 9, 1999). All requests
and arguments must be submitted to the Director, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. In the absence of a legible postmark, the
request to reconsider shall be deemed timely filed if it is received by
mail within five days of the expiration of the applicable filing period.
See 29 C.F.R. § 1614.604. The request or opposition must also include
proof of service on the other party.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely, unless extenuating circumstances
prevented the timely filing of the request. Any supporting documentation
must be submitted with your request for reconsideration. The Commission
will consider requests for reconsideration filed after the deadline only
in very limited circumstances. See 29 C.F.R. § 1614.604(c).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S0900)
You have the right to file a civil action in an appropriate United States
District Court within ninety (90) calendar days from the date that you
receive this decision. If you file a civil action, you must name as
the defendant in the complaint the person who is the official agency head
or department head, identifying that person by his or her full name and
official title. Failure to do so may result in the dismissal of your
case in court. "Agency" or "department" means the national organization,
and not the local office, facility or department in which you work. If you
file a request to reconsider and also file a civil action, filing a civil
action will terminate the administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z1199)
If you decide to file a civil action, and if you do not have or cannot
afford the services of an attorney, you may request that the Court appoint
an attorney to represent you and that the Court permit you to file the
action without payment of fees, costs, or other security. See Title VII
of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq.;
the Rehabilitation Act of 1973, as amended, 29 U.S.C. §§ 791, 794(c).
The grant or denial of the request is within the sole discretion of
the Court. Filing a request for an attorney does not extend your time
in which to
file a civil action. Both the request and the civil action must be
filed within the time limits as stated in the paragraph above ("Right
to File A Civil Action").
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
June 15, 2004
__________________
Date
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114 | https://www.eeoc.gov/sites/default/files/migrated_files/decisions/0120160011.r.txt | 0120160011.r.txt | TXT | text/plain | 9,300 | Merrill O.,1 Complainant, v. Robert McDonald, Secretary, Department of Veterans Affairs, Agency. | September 4, 2015 | Appeal Number: 0120160011
Background:
During the period at issue, Complainant worked as an Advance Medical Support Assistant at the Agency's Veterans Affairs Medical Center in Kansas City, Missouri.
On March 23, 2015, Complainant initiated EEO Counselor contact. Informal efforts to resolve his concerns were unsuccessful.
On June 24, 2015, Complainant filed the instant formal complaint. Therein, Complainant alleged that he was subjected him to harassment and a hostile work environment on the bases of race and sex when:
1. from June 2012 through January 2015, his supervisor violated his privacy rights when she told other employees about health matters concerning Complainant's daughter;
2. from June 2012 through January 2015, he heard the supervisor stated she could not stand to work with him;
3. from June 2012 through January 2015, the supervisor of primary care accused him of drinking on the job;
4. from June 2012 through January 2015, management failed to take action regarding the supervisor's harassment; and
5. he was removed from his Advance Medical Support Assistant position effective January 17, 2015.
In its September 4, 2015 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 March 23, 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 him that his EEO contact was untimely because Complainant had attempted to resolve his concerns through the union.
Regarding Complainant's allegation that his union representative failed to represent him and inform him of the EEO complaint process, the Agency stated that the EEO Program Manager stated that Complainant was aware of the requisite 45-day time period because from 2011 through 2013, he received EEO training on the EEO complaint process.
The record contains a copy of the EEO Program Manager's affidavit. Therein, the EEO Program Manager stated that Complainant attended the New Employee Orientation wherein new employees were "informed of the EEO process, the 45-day limitation timeframe for contacting an EEO counselor and how to go about doing so. The attached sign in sheet, identified as Exhibit B, contains [Complainant's] signature on the second page, indicating that he attended New Employee Orientation on March 2, 2011."
Complainant, on appeal, argues that his union representative "misrepresented my case from the start back in September/2014 by not filing the discrimination in timely manner, along with holding my file and not releasing it to myself until February 26, 2015 which at that time this is when I realized what he had done...had I know what this president [union representative] was up to along with the [EEO Program Manager] and [Agency official] I would have contacted someone a lot sooner than what you are stating."
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 most recent alleged discriminatory event occurred on January 17, 2015. However, Complainant did not initiate contact with an EEO Counselor until March 23, 2015, well beyond the 45-day limitation period. Complainant had or should have had a reasonable suspicion of discrimination regarding his claim more than 45 days prior to his 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. | Merrill O.,1
Complainant,
v.
Robert McDonald,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120160011
Agency No. 2003-0589-2015102523
DECISION
Complainant filed a timely appeal with this Commission from the Agency's final decision dated September 4, 2015, dismissing a formal complaint of unlawful employment discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. § 2000e et seq.
BACKGROUND
During the period at issue, Complainant worked as an Advance Medical Support Assistant at the Agency's Veterans Affairs Medical Center in Kansas City, Missouri.
On March 23, 2015, Complainant initiated EEO Counselor contact. Informal efforts to resolve his concerns were unsuccessful.
On June 24, 2015, Complainant filed the instant formal complaint. Therein, Complainant alleged that he was subjected him to harassment and a hostile work environment on the bases of race and sex when:
1. from June 2012 through January 2015, his supervisor violated his privacy rights when she told other employees about health matters concerning Complainant's daughter;
2. from June 2012 through January 2015, he heard the supervisor stated she could not stand to work with him;
3. from June 2012 through January 2015, the supervisor of primary care accused him of drinking on the job;
4. from June 2012 through January 2015, management failed to take action regarding the supervisor's harassment; and
5. he was removed from his Advance Medical Support Assistant position effective January 17, 2015.
In its September 4, 2015 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 March 23, 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 him that his EEO contact was untimely because Complainant had attempted to resolve his concerns through the union.
Regarding Complainant's allegation that his union representative failed to represent him and inform him of the EEO complaint process, the Agency stated that the EEO Program Manager stated that Complainant was aware of the requisite 45-day time period because from 2011 through 2013, he received EEO training on the EEO complaint process.
The record contains a copy of the EEO Program Manager's affidavit. Therein, the EEO Program Manager stated that Complainant attended the New Employee Orientation wherein new employees were "informed of the EEO process, the 45-day limitation timeframe for contacting an EEO counselor and how to go about doing so. The attached sign in sheet, identified as Exhibit B, contains [Complainant's] signature on the second page, indicating that he attended New Employee Orientation on March 2, 2011."
Complainant, on appeal, argues that his union representative "misrepresented my case from the start back in September/2014 by not filing the discrimination in timely manner, along with holding my file and not releasing it to myself until February 26, 2015 which at that time this is when I realized what he had done...had I know what this president [union representative] was up to along with the [EEO Program Manager] and [Agency official] I would have contacted someone a lot sooner than what you are stating."
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 most recent alleged discriminatory event occurred on January 17, 2015. However, Complainant did not initiate contact with an EEO Counselor until March 23, 2015, well beyond the 45-day limitation period. Complainant had or should have had a reasonable suspicion of discrimination regarding his claim more than 45 days prior to his 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
March 11, 2016
__________________
Date
------------------------------------------------------------
------------------------------------------------------------
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"Williams v. United States Postal Service, EEOC Request No. 05910291 (April 25, 1991)",
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115 | https://www.eeoc.gov/sites/default/files/migrated_files/decisions/0120162113.txt | 0120162113.txt | TXT | text/plain | 9,443 | Ria T.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Capital Metro Area), Agency. | May 8, 2014 | Appeal Number: 0120162113
Background:
At the time of events giving rise to this complaint, Complainant worked as a Sales Service Distribution Clerk at the Agency's Decatur Main Post Office in Decatur, Georgia.
On March 16, 2012, Complainant filed a formal complaint alleging that the Agency discriminated against her based on reprisal for prior protected equal employment opportunity (EEO) activity when:
On October 4, 2011, she learned from a co-worker that a file containing her medical documentation was left lying around on the floor for other employees to see, exposing her social security number, birthday, account number, medical limitations and diagnosis.
In FAD 1, dated May 8, 2012, the Agency dismissed the complaint for failure to timely initiate EEO counseling. It reasoned that the alleged discrimination occurred on October 4, 2011, and Complainant initiated EEO counseling on December 7, 2011, beyond the 45 calendar day time limit.
Complainant appealed FAD 1. She alleged that she first initiated EEO contact by telephone on November 1, 2011, and after not receiving the EEO packet she initiated a second contact by telephone on December 7, 2011. In opposition to prior appeal, the Agency submitted its EEO Contact Center log. The log listed December 7, 2011, as the date on which Complainant initiated EEO contact.
In EEOC Appeal No. 0120122760 (April 7, 2014), the Commission vacated FAD 1. We found that given the parties dispute, we were unable to determine the initial EEO contact date. We ordered the Agency to supplement the record on the initial contact date. We specified that this must include information on the method by which telephone calls to its EEO Contact Center are logged and a description of any efforts the Agency made or makes to determine if Complainant called the EEO Contact Center within 45 calendar days of October 4, 2011, with a focus on November 1, 2011. We specified that this information must be in the form of any additional documentation and an affidavit, and that Complainant be given an opportunity to supplement the record.
After the Agency supplemented the record, it issued FAD 2. The supplementation included an affidavit by an EEO Data Analyst, who is responsible for processing employee/applicant contacts to its EEO Contract Center as well as call logs on Complainant - organized by her name, social security number, and employee identification number. The EEO Data Analyst stated that that when the employee/applicant calls the EEO Contact Center, they provide their name, mailing address, social security number and finance number to an Interactive Voice Response system which records their verbal responses. She wrote that the call is time-and-date stamped at that time by the Centralized Intake System, the software used to document calls coming into the EEO Contact Center, and this date-and-time stamp cannot be change or altered. The call logs reflected 11 calls by Complainant from March 2008 through December 7, 2011. Complainant made two calls on December 7, 2011, and her most recent prior call was on April 30, 2010.
In response to Agency questions, Complainant submitted a statement for the record supplementation. She wrote that given the time that elapsed, she did not recall the telephone number she called on November 1, 2011, nor the time of day she made the call. In response to the question on what information she left with the Voice Response System, Complainant wrote her name, address, phone number and place of employment.
On May 8, 2012, Complainant simultaneously filed a request for reconsideration from EEOC Appeal No. 0120122760 (April 7, 2014) and FAD 2. In EEOC Request No. 0520140319 (June 23, 2016), the Commission denied Complainant's request for reconsideration, but noted that her appeal would be processed.
Legal Analysis:
the Commission vacated FAD 1. We found that given the parties dispute, we were unable to determine the initial EEO contact date. We ordered the Agency to supplement the record on the initial contact date. We specified that this must include information on the method by which telephone calls to its EEO Contact Center are logged and a description of any efforts the Agency made or makes to determine if Complainant called the EEO Contact Center within 45 calendar days of October 4, 2011, with a focus on November 1, 2011. We specified that this information must be in the form of any additional documentation and an affidavit, and that Complainant be given an opportunity to supplement the record.
After the Agency supplemented the record, it issued FAD 2. The supplementation included an affidavit by an EEO Data Analyst, who is responsible for processing employee/applicant contacts to its EEO Contract Center as well as call logs on Complainant - organized by her name, social security number, and employee identification number. The EEO Data Analyst stated that that when the employee/applicant calls the EEO Contact Center, they provide their name, mailing address, social security number and finance number to an Interactive Voice Response system which records their verbal responses. She wrote that the call is time-and-date stamped at that time by the Centralized Intake System, the software used to document calls coming into the EEO Contact Center, and this date-and-time stamp cannot be change or altered. The call logs reflected 11 calls by Complainant from March 2008 through December 7, 2011. Complainant made two calls on December 7, 2011, and her most recent prior call was on April 30, 2010.
In response to Agency questions, Complainant submitted a statement for the record supplementation. She wrote that given the time that elapsed, she did not recall the telephone number she called on November 1, 2011, nor the time of day she made the call. In response to the question on what information she left with the Voice Response System, Complainant wrote her name, address, phone number and place of employment.
On May 8, 2012, Complainant simultaneously filed a request for reconsideration from EEOC Appeal No. 0120122760 (April 7, 2014) and FAD 2. In EEOC Request No. 0520140319 (June 23, 2016), the Commission denied Complainant's request for reconsideration, but noted that her appeal would be processed.
ANALYSIS AND FINDINGS
An aggrieved person must seek EEO counseling within 45 days of the date of the alleged discriminatory action, or in the case of a personnel action, within 45 days of the effective date of the action. 29 C.F.R. § 16l4.105(a)(l) & .l07(a)(2).
In dismissing the complaint, the Agency reasoned that the alleged discrimination occurred on October 4, 2011, and Complainant initiated EEO counseling on December 7, 2011, beyond the 45 calendar day time limit. Complainant counters that she timely initiated EEO contact on November 1, 2011. After reviewing the supplemental record, we find that the weight of the evidence is that Complainant did not make EEO contact until December 7, 2011. This is supported by the affidavit of the EEO Data Analyst and the call logs, maintained in the course of regular business.
Final Decision:
Accordingly, FAD 2 is AFFIRMED. | Ria T.,1
Complainant,
v.
Megan J. Brennan,
Postmaster General,
United States Postal Service
(Capital Metro Area),
Agency.
Appeal No. 0120162113
Agency No. 4K-300-0038-12
DECISION
On May 8, 2014, Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from a final Agency decision (FAD 2) dated April 30, 2014, dismissing her complaint of unlawful employment discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. § 2000e et seq.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Sales Service Distribution Clerk at the Agency's Decatur Main Post Office in Decatur, Georgia.
On March 16, 2012, Complainant filed a formal complaint alleging that the Agency discriminated against her based on reprisal for prior protected equal employment opportunity (EEO) activity when:
On October 4, 2011, she learned from a co-worker that a file containing her medical documentation was left lying around on the floor for other employees to see, exposing her social security number, birthday, account number, medical limitations and diagnosis.
In FAD 1, dated May 8, 2012, the Agency dismissed the complaint for failure to timely initiate EEO counseling. It reasoned that the alleged discrimination occurred on October 4, 2011, and Complainant initiated EEO counseling on December 7, 2011, beyond the 45 calendar day time limit.
Complainant appealed FAD 1. She alleged that she first initiated EEO contact by telephone on November 1, 2011, and after not receiving the EEO packet she initiated a second contact by telephone on December 7, 2011. In opposition to prior appeal, the Agency submitted its EEO Contact Center log. The log listed December 7, 2011, as the date on which Complainant initiated EEO contact.
In EEOC Appeal No. 0120122760 (April 7, 2014), the Commission vacated FAD 1. We found that given the parties dispute, we were unable to determine the initial EEO contact date. We ordered the Agency to supplement the record on the initial contact date. We specified that this must include information on the method by which telephone calls to its EEO Contact Center are logged and a description of any efforts the Agency made or makes to determine if Complainant called the EEO Contact Center within 45 calendar days of October 4, 2011, with a focus on November 1, 2011. We specified that this information must be in the form of any additional documentation and an affidavit, and that Complainant be given an opportunity to supplement the record.
After the Agency supplemented the record, it issued FAD 2. The supplementation included an affidavit by an EEO Data Analyst, who is responsible for processing employee/applicant contacts to its EEO Contract Center as well as call logs on Complainant - organized by her name, social security number, and employee identification number. The EEO Data Analyst stated that that when the employee/applicant calls the EEO Contact Center, they provide their name, mailing address, social security number and finance number to an Interactive Voice Response system which records their verbal responses. She wrote that the call is time-and-date stamped at that time by the Centralized Intake System, the software used to document calls coming into the EEO Contact Center, and this date-and-time stamp cannot be change or altered. The call logs reflected 11 calls by Complainant from March 2008 through December 7, 2011. Complainant made two calls on December 7, 2011, and her most recent prior call was on April 30, 2010.
In response to Agency questions, Complainant submitted a statement for the record supplementation. She wrote that given the time that elapsed, she did not recall the telephone number she called on November 1, 2011, nor the time of day she made the call. In response to the question on what information she left with the Voice Response System, Complainant wrote her name, address, phone number and place of employment.
On May 8, 2012, Complainant simultaneously filed a request for reconsideration from EEOC Appeal No. 0120122760 (April 7, 2014) and FAD 2. In EEOC Request No. 0520140319 (June 23, 2016), the Commission denied Complainant's request for reconsideration, but noted that her appeal would be processed.
ANALYSIS AND FINDINGS
An aggrieved person must seek EEO counseling within 45 days of the date of the alleged discriminatory action, or in the case of a personnel action, within 45 days of the effective date of the action. 29 C.F.R. § 16l4.105(a)(l) & .l07(a)(2).
In dismissing the complaint, the Agency reasoned that the alleged discrimination occurred on October 4, 2011, and Complainant initiated EEO counseling on December 7, 2011, beyond the 45 calendar day time limit. Complainant counters that she timely initiated EEO contact on November 1, 2011. After reviewing the supplemental record, we find that the weight of the evidence is that Complainant did not make EEO contact until December 7, 2011. This is supported by the affidavit of the EEO Data Analyst and the call logs, maintained in the course of regular business.
Accordingly, FAD 2 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
October 3, 2016
__________________
Date
------------------------------------------------------------
------------------------------------------------------------
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116 | https://www.eeoc.gov/sites/default/files/migrated_files/decisions/0120054976.txt | 0120054976.txt | TXT | text/plain | 9,160 | Pierre Baney, Complainant, v. Alberto Gonzales, Attorney General, Department of Justice, (Federal Bureau of Prisons) Agency. | June 27, 2005 | Appeal Number: 01200549761
Case Facts:
Complainant filed a timely appeal with this Commission from the final
agency decision dated June 27, 2005, dismissing his formal complaint of
unlawful employment discrimination in violation of Title VII of the Civil
Rights Act of 1964 (Title VII), as amended, 42 U.S.C. § 2000e et seq.
On January 12, 2005, complainant filed a formal complaint. Therein,
complainant claimed that he was the victim of unlawful employment
discrimination on the bases of sex (male), age (50), sexual orientation,
and in reprisal for prior protected EEO activity.2
On June 27, 2005, the agency issued the instant final decision.
The agency determined that the instant complaint was comprised of four
claims, identified in the following fashion:
1. In December 2004, a less senior Hispanic staff member was placed into
a position of seniority, and prior to this placement said vacancy was
never announced to all staff.
2. Management lied to an EEO investigator, complainant's attorney,
a Bureau of Prisons attorney and the Warden, regarding complainant's
claims of stopped medical, dental and vision benefits.
3. Management perjured itself, and on four occasions, the Bureau of
Prison's EEO office refused complainant's petition for a new EEO
Counselor.
4. The Bureau of Prisons' Office of South Central Regional regarded
complainant as having a mental disability, and this motivated its actions
against him; this Office made no attempt to accommodate his perceived
disability, but rather used their perceptions to harass complainant;
and has attempted to circumvent the charges by creating "pretextual
non-legitimate explanation for [its] reprisal and discrimination"
because complainant has filed lawsuits against it.
The agency dismissed claims (1) - (4) on the grounds that these claims
were not raised with an EEO Counselor and that they are not like or
related to a matter for which complainant underwent EEO Counseling.
The agency also dismissed claims (2) - (4) on the grounds that these
claims allege dissatisfaction with the processing of a prior complaint.
The agency dismissed claim (4) on the added alternative grounds of
failure to cooperate.
Legal Analysis:
EEOC Regulation 29 C.F.R. § 1614.105(a) requires that aggrieved persons
who believe they have been discriminated against must consult a Counselor
prior to filing a complaint in order to try to informally resolve the
matter.
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.
Agencies are likewise required to dismiss complaints raising claims not
brought to the attention of an EEO Counselor and are not like or related
to a matter that had been brought to the attention of an EEO Counselor.
29 C.F.R. § 1614.107(a)(2).
A fair reading of the record reveals that complainant never contacted
an EEO Counselor to initiate processing of the instant complaint.
Instead, complainant filed the instant formal complaint in the absence
of EEO counseling. On appeal, complainant argues, among other matters,
that in previously filed EEO complaints, the agency had refused to
provide him with a new EEO Counselor. However, complainant does not
provide elaboration of the reasons for refusing EEO counseling with
the EEO Counselor who he has been assigned. Complainant states that
"[I]t's against my privacy to talk with anybody about what Mr. B (the
EEO Counselor) had done in the last counseling with me."
The record reveals that complainant previously filed an appeal with
the Commission, and was well aware of his obligation to contact an EEO
Counselor prior to filing a written complaint. The Commission affirmed
the agency's dismissal of a prior complaint, when complainant refused
to contact an agency EEO Counselor based on his belief that the EEO
Counselor had a conflict of interest. The Commission determined that
complainant's belief did no justify complainant's failure to follow
regulatory procedures. Baney v. Department of Justice, EEOC Appeal
No. 01A53938 (September 15, 2005); request to reconsider denied, EEOC
Request No. 05A60016 (October 31, 2005)
The Commission determines that in the instant case, complainant has
again failed to provide an adequate justification for not contacting
the EEO Counselor, as required by the regulations, prior to filing a
formal compliant.
Final Decision:
Accordingly, the agency's final decision dismissing the complaint pursuant to 29 C.F.R. § 1614.107 (a)(2) is AFFIRMED. | John-Pierre Baney,
Complainant,
v.
Alberto Gonzales,
Attorney General,
Department of Justice,
(Federal Bureau of Prisons)
Agency.
Appeal No. 01200549761
Agency No. P-2005-0083
DECISION
Complainant filed a timely appeal with this Commission from the final
agency decision dated June 27, 2005, dismissing his formal complaint of
unlawful employment discrimination in violation of Title VII of the Civil
Rights Act of 1964 (Title VII), as amended, 42 U.S.C. § 2000e et seq.
On January 12, 2005, complainant filed a formal complaint. Therein,
complainant claimed that he was the victim of unlawful employment
discrimination on the bases of sex (male), age (50), sexual orientation,
and in reprisal for prior protected EEO activity.2
On June 27, 2005, the agency issued the instant final decision.
The agency determined that the instant complaint was comprised of four
claims, identified in the following fashion:
1. In December 2004, a less senior Hispanic staff member was placed into
a position of seniority, and prior to this placement said vacancy was
never announced to all staff.
2. Management lied to an EEO investigator, complainant's attorney,
a Bureau of Prisons attorney and the Warden, regarding complainant's
claims of stopped medical, dental and vision benefits.
3. Management perjured itself, and on four occasions, the Bureau of
Prison's EEO office refused complainant's petition for a new EEO
Counselor.
4. The Bureau of Prisons' Office of South Central Regional regarded
complainant as having a mental disability, and this motivated its actions
against him; this Office made no attempt to accommodate his perceived
disability, but rather used their perceptions to harass complainant;
and has attempted to circumvent the charges by creating "pretextual
non-legitimate explanation for [its] reprisal and discrimination"
because complainant has filed lawsuits against it.
The agency dismissed claims (1) - (4) on the grounds that these claims
were not raised with an EEO Counselor and that they are not like or
related to a matter for which complainant underwent EEO Counseling.
The agency also dismissed claims (2) - (4) on the grounds that these
claims allege dissatisfaction with the processing of a prior complaint.
The agency dismissed claim (4) on the added alternative grounds of
failure to cooperate.
EEOC Regulation 29 C.F.R. § 1614.105(a) requires that aggrieved persons
who believe they have been discriminated against must consult a Counselor
prior to filing a complaint in order to try to informally resolve the
matter.
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.
Agencies are likewise required to dismiss complaints raising claims not
brought to the attention of an EEO Counselor and are not like or related
to a matter that had been brought to the attention of an EEO Counselor.
29 C.F.R. § 1614.107(a)(2).
A fair reading of the record reveals that complainant never contacted
an EEO Counselor to initiate processing of the instant complaint.
Instead, complainant filed the instant formal complaint in the absence
of EEO counseling. On appeal, complainant argues, among other matters,
that in previously filed EEO complaints, the agency had refused to
provide him with a new EEO Counselor. However, complainant does not
provide elaboration of the reasons for refusing EEO counseling with
the EEO Counselor who he has been assigned. Complainant states that
"[I]t's against my privacy to talk with anybody about what Mr. B (the
EEO Counselor) had done in the last counseling with me."
The record reveals that complainant previously filed an appeal with
the Commission, and was well aware of his obligation to contact an EEO
Counselor prior to filing a written complaint. The Commission affirmed
the agency's dismissal of a prior complaint, when complainant refused
to contact an agency EEO Counselor based on his belief that the EEO
Counselor had a conflict of interest. The Commission determined that
complainant's belief did no justify complainant's failure to follow
regulatory procedures. Baney v. Department of Justice, EEOC Appeal
No. 01A53938 (September 15, 2005); request to reconsider denied, EEOC
Request No. 05A60016 (October 31, 2005)
The Commission determines that in the instant case, complainant has
again failed to provide an adequate justification for not contacting
the EEO Counselor, as required by the regulations, prior to filing a
formal compliant. Accordingly, the agency's final decision dismissing
the complaint pursuant to 29 C.F.R. § 1614.107 (a)(2) is AFFIRMED.
Because we affirm the agency's decision to dismiss the complaint for
not raising the claims with an EEO Counselor, we find it unnecessary to
address the agency's alternative dismissal grounds.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
The Commission may, in its discretion, reconsider the decision in this
case if the complainant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. The appellate decision involved a clearly erroneous interpretation
of material fact or law; or
2. The appellate decision will have a substantial impact on the
policies, practices, or operations of the agency.
Requests to reconsider, with supporting statement or brief, must be filed
with the Office of Federal Operations (OFO) within thirty (30) calendar
days of receipt of this decision or within twenty (20) calendar days of
receipt of another party's timely request for reconsideration. See 29
C.F.R. § 1614.405; Equal Employment Opportunity Management Directive for
29 C.F.R. Part 1614 (EEO MD-110), 9-18 (November 9, 1999). All requests
and arguments must be submitted to the Director, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. In the absence of a legible postmark, the
request to reconsider shall be deemed timely filed if it is received by
mail within five days of the expiration of the applicable filing period.
See 29 C.F.R. § 1614.604. The request or opposition must also include
proof of service on the other party.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely, unless extenuating circumstances
prevented the timely filing of the request. Any supporting documentation
must be submitted with your request for reconsideration. The Commission
will consider requests for reconsideration filed after the deadline only
in very limited circumstances. See 29 C.F.R. § 1614.604(c).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S0900)
You have the right to file a civil action in an appropriate United States
District Court within ninety (90) calendar days from the date that you
receive this decision. If you file a civil action, you must name as the
defendant in the complaint the person who is the official agency head
or department head, identifying that person by his or her full name and
official title. Failure to do so may result in the dismissal of your
case in court. "Agency" or "department" means the national organization,
and not the local office, facility or department in which you work. If you
file a request to reconsider and also file a civil action, filing a civil
action will terminate the administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z1199)
If you decide to file a civil action, and if you do not have or cannot
afford the services of an attorney, you may request that the Court appoint
an attorney to represent you and that the Court permit you to file the
action without payment of fees, costs, or other security. See Title VII
of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq.;
the Rehabilitation Act of 1973, as amended, 29 U.S.C. §§ 791, 794(c).
The grant or denial of the request is within the sole discretion of
the Court. Filing a request for an attorney does not extend your time
in which to file a civil action. Both the request and the civil action
must be filed within the time limits as stated in the paragraph above
("Right to File A Civil Action").
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
March 30, 2007
__________________
Date
1 Due to a new data system, this case has been re-designated with the
above referenced appeal number.
2 We note that sexual orientation, marital status, parental status,
and political beliefs are not covered by the Federal regulations that
this Commission enforces. See 29 C.F.R. § 1614.101.
??
??
??
??
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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117 | https://www.eeoc.gov/sites/default/files/decisions/2024_05_22/2023001132.pdf | 2023001132.pdf | PDF | application/pdf | 25,617 | Kristie D .,1 Complainant, v. Carlos Del Toro, Secretary, Department of the Navy, Agency. | November 9, 2022 | Appeal Number: 2023001132
Background:
At the time of events giving rise to this complaint, Complainant worked as a Deputy Assistant
Chief of Staff/ Deputy Director at the Agency’s Marine Corps Installations Command, G-7
Modernization and Innovation Directorate in Washington, D.C.
On December 31, 2020, Complainant filed a formal EEO complaint alleging that the Agency
discriminated against her when:
1) Complainant was subjected to non- sexual harassment on the bases of sex (female) and
disability ( physical ) when :
a) in April 2019, Complainant relayed concerns regarding a leak and the effects the leak
had on her disability (upper respiratory and sinus inf ection) to her first -line supervisor
(“Supervisor ”) in w riting, but no action was take n;
b) on or around March 12, 2020, Complainant learned that she woul d be returning to her
previous workspac e; a HEP A filter would be added; and there was no other space for
her to work in. T he next day, Complainant learned that a Major (a subordinate ),
would be moving to the front office, which runs on a different HVAC s ystem;
c) on or around March 16, 2020, Compl ainant r eques ted sick leave based on her
doctor ’s advice, but her request was denied;
d) in April 2020, Complainant reached out to a Human Resources (HR) Specialist
regarding the Agency ’s plan t o return back to work. The HR S pecialist essentially
threatened t hat Complainant could los e her job based on her need for a reasonable
accommodation and told her to “think carefully about what needs to be done ”;
e) on or around July 2020, Complainant learned that it took five months f or so meone to
complete the 5100/ 9 Medical Referral Form for her workplace injur y; and
f) on or around Augus t 30, 2020, Complainant was excluded from a mee ting with one of
her subordinates about a pilot program; and
2) Complainant was subjected to discrimination ba sed on dis ability whe n on January 29,
2020, she spoke to the Assistant Chief of Staff regarding a reasonable accommodation request, who referred her to the Administrative and R esources Division, H R and
Organizational Management office with out providing any additional assistance, an d
Complainant was not provided a reasonable accommodation.
At the conclusion of the investigation, Complainant was provided a copy of the report of
investigation (ROI) , and she requested a hearing before an EEOC Administrat ive Judge (AJ).
On December 1, 2021, the A gency fi led a Motion to Dismiss as Untimely and Motion of Intent
to Submit Motion for Summary Judgment Pre -Discovery. The Agency argued that the complaint
should be dismissed as untimely. The Agency noted that Com plainant asserted an initial EE O
contact date of October 14, 2020, but the EEO Counselor recorded an initial contact date of
October 29, 2020. However, even using October 14th as the initial contact date, Complainant ’s
contact still occurred beyond her 45- day limit.
2 Compla inant emailed the Assist ant Chief of Staff about her request fo r situational telework, and
the Assistant Chief of Staff responded with a memo regar ding implementation of a telework
agreement. The Supervisor testified that Complainant was autho rized to telework full time from
on or about February 4, 2020, th rough her de parture on August 29, 2020. ROI at 901, 931.
For Complainant ’s allegation o f harassment (claim 1), she noted that the last incident occurred
on August 30, 2020, but she correc ted that the meeting occurred on August 28th, which wa s
corroborated by other evidence in the record. As such, the en tire claim should be dismissed as
untimely. The second claim , which was separate and distinc t from cla im 1, occurred on January
29, 2020, well outside of Complainant ’s 45- day deadline for EEO contact. Even crediting that
the Agency had an ongoing obligatio n to provide a reasonable accommodation, Complainant ’s
final day of employment with the Agency was August 29, 2020, which was still beyond her deadline.
The Agency further asserts tha t Complainant should have known of the 45- day requirement as a
supervisor, with the expect ation of understanding the basi cs of complain t processing. The
Agency also noted that witnesses testi fied that EEO policies and requireme nts were posted
throughout their workspace in bulletin boards. One poster clearly had the 45- day requirement.
The Agency stated that the record was devoid of any evidence that Complainant was unaware of
this req uirement, and yet she failed to contact the EEO office in a timely fashion.
Complainant opposed the Agency’ s motion , asserting that her contact was timely because
August 29, 2020, was merely the last date that the A gency paid her, and she was harassed
through August 31, 2020. The Agency filed a reply t o Complainant ’s opposition, disput ing her
attempts to add incidents that allegedly contributed to her hostile work environment clai m. The
only action Complainant alleged had occurred on August 31, 2020, was the return of her laptop,
but she failed to artic ulate how returning government property was in any way discriminatory or
hostile. The Agency further noted that Complainant previously file d a Motion to Amend, but she
did not mention additional events on August 30 or 31, 2020.
On September 30, 2022, the AJ fully adopted and granted the Agency ’s Motion to Dismiss . The
Agency issued a final order ad opting the AJ ’s decision.
Complainant filed the instant appeal, and she submitted a brief and documents in support of her
appeal .
4 The Agency opposes Complainant ’s appeal.
Legal Analysis:
the Commission’s ow n assessment of the record
and its interpretation of the la w”).
New Evidence on Appeal As a general ru le, no new evidence will be considered on appeal unless there is an affirmative
showing that the evidence was not reasonably available prior to or during the investigation. See
EEO MD -110 at Chap. 9, § VI.A.3. Here, Complainant has not provided arguments or evidence
to show that these new materials were not available during the investigation, or any explanation as to why they were not provided to the investigator during the investigative stage . Further, she
did not provide this new evidence with her opposit ion to the Agency’ s Motion to D ismiss.
However, for the sake of argument, we find that even if this evidence is considered on appeal,
the evidence does not alter our final disposition that Complainant failed to prove that her EEO
contact was timely or that her deadli ne should be tolled.
Timely EEO Contact
EEOC regulation requires that complaint s of disc rimination s hould be brought to the attention of
the EEO counselor within forty- five (45) days of the date of the matter alleged to be
discriminatory or, i n the case of a personnel action, within forty- five (45) days of the effective
date of the a ction. 29 C.F.R. § 1614.105(a)(1). Here, the EEO Counselor noted Complainant ’s
initial contact date as October 29, 2020, while Complainant listed it as October 14, 2020. ROI at
8, 17. However, with her opposition to the Agen cy’s motion , Complainant attached an email
from her previous attorney initiating the informal EEO complaint on October 14, 2020.
Complainant ’s Oppositi on to Agency’ s Motion to Dismiss as Untimely and Motion of Intent to
Submit Motion for Judgment Pre -discovery, Exhibit A. As such , we fin d that Complainant
established her initial EEO contact date as October 14, 2020, and events prior to August 30,
2020, are considered untimely. In her formal EEO c omplaint, Complai nant alleged that the most recent discriminatory event
occurred on August 30, 2020, when the Supervisor held a meeting with one of Complainant ’s
subordinates, but he failed to i nclude Complainant in the meeting. ROI at 8, 14.
However, Complainant provided in her sworn declaration that the Supervisor excluded her from
the meeting on August 28, 2020. ROI at 271. The S upervisor testified that there was no meeting
on August 30, 2020, but there was a meeting on August 28th. He added that he did not s chedule
the Commander ’s meetings, but since it was Complainant ’s last day with the comma nd, her
participation in a meeting to discuss a long- term project was not necessary . ROI at 948. We find
that th is evidence established that t he meeting at issue o ccurred on August 28, 2020, maki ng her
harassment claim untimely.
On appeal, Complainant asserts t hat the operative end date of her employment with the Agency
was August 31, 2020, because she communicated with her direct report on that date and returned
her work laptop th e day after August 31, 2020. Therefore, her reasonable accommodation requ est
was ongoing through the last date of her emplo yment of August 31, 2020 (claim 2) , making her
complaint timely. As support ing evidence, Complainant provi ded two emails sent to a cowo rker.
On August 30, 2020, she wrote from her personal em ail acco unt, “You are so fantastic…Thank
you!” and on August 31, 2020, she t hanked him for sending information . Complainant also
emailed her personnel documents to her private email address on August 30, 2020. Howe ver, we
are not persuaded by Complainant ’s contentions because non e of these emails indicate d that she
was still performing her duties or that she was still considered employed by the Agency .
Rather, in the August 31
st email to the coworker , Complainant informed him that she was “just
on-boarding,” after he wished her good luc k in her new position. The record shows that
Complainant notif ied her management officials that she would transition to another agency on
August 29, 2020. She also testified that she “left the Command on August 29, 2020,” and she
started h er new position on August 30, 2020. ROI at 1641, 300-1. Complainant has not explained
why the Commission should disregard her previously sworn testimony that was co nsistent with
her email stating that she was on -boarding into her new position on August 31st. Further, t he
Agency submitted a copy of Complai nant’s official SF-50 form noting the end date of her
employment as August 29, 2020. Agency Motion to Dismiss, Attachm ent 1. A ccordingly, we
find that Complainant has not proven that her employment with the Agency extended through
August 31, 2020.
Complainant also argues that the Agency provided improper notice of her 45 -day deadline to
contact the EEO office. EEOC regu lation provides that an 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 di scriminatory matter or personnel action occurred, that despite due diligence she was
prevented by circumstances beyond her control from contacting the EEO Counselor within the
time limits, or for other reasons considered sufficient by the agency or the Com mission. 29
C.F.R. § 1614.105(a)(2).
Complainant notes that the Commission has previous ly fo und that a gene ralized affi rmation that
an agency posted EEO information, without specific evidence that the poster contained the specified time limits , was insuff icient to demonstrate constructive notice of the 45- day deadline.
However, we find that the Agency offered more than a generalized affirmation of the posted
EEO information. T he Agency submitted a copy of its EEO notice , which show s the 45- day
deadline twi ce in a red font to contrast the remaining black text . ROI at 107.
In addition, G-7 coworkers testified to witness ing the poste rs in the ir shared workspace. They
responded that EEO policies and posters were “ [i]n prominent, high traffic locatio ns for al l to
view, ” and “[o]n read boards around the office. ” ROI at 1553, 1566. The S upervisor
corroborated that the materials were “[a]t a mi nimum on the read board outs ide of the door of
2D153A.5 Also posted on various walls around t he space. ” ROI at 963. W hile Complainant
asser ts that she had not physically been to her office since February 2020, she testified that her
first day in the office was Januar y 23, 2019. ROI at 239. As such, Complainant had the
opportunity to read these posters for approximately one ye ar, and sh e has not proven that she
could not have reasonably known the deadline.
Com plainant further contends that the EEO Counselor did not inform her that her complaint
could be di smissed if she did not meet the 45 -day de adline . However, the Commissi on has found
that constructive knowle dge will be imputed where an agency has fulfilled i ts sta tutory
obligation by posting notices informing employees of their rights and obligations unde r EEO
regulations, as long as the record contains sufficient informat ion from w hich the C ommission
could find that the poster contained notice of the time li mit for initiating EEO counseling. S ee
Hedy B. Dep ’t of Homeland Security, EEOC Appeal No. 2021002516 (Jun. 8, 2021); Yashuk v.
U.S. Postal Serv., EEOC Request No. 05890382 (Jun. 2, 1989) . We find that the Agency met its
obligation by placing its EEO poste r highlighting the 45- day deadline to initiate EEO couns eling
in Complainant ’s work area, which was corroborated by multiple G -7 employees.
Complainant argues that th e Commiss ion has tolled deadline s when complainant s relied on
advic e from the EEO office to their detriment, and that in her case, she relied on Agency
officials ’ expertise to address her office hazards when she was advised to file a workers ’
compensation claim inste ad of requesting a reasonable a ccommodation. However, we find that
Complainant ’s arguments are mispla ced because any advice related to whether Complainant
should have utilized the reasonable accommodation process or filed a workers ’ compensation
claim has no bearing on her dead line to cont act the EEO office to allege discrimination . 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 misinfor ming the complainant. See Wilkinson v. U.S. Postal Serv., EEOC Request No.
05950205 (Mar. 25, 1996). See also Elijah v. Dep’t of the Army, EEOC Request No. 05950632
(Mar. 28, 1996) (if agency officials misled complainant into waiting to initiate EE O counse ling,
agency must extend time limit for contacting EEO Counselor). Here, Complainant offers no
arguments or evidence that any Agency offic ial misled her about initiating her EEO complaint.
5 Complainant id entified 2D153A as the suite that she worked in. ROI at 301, 275.
Complainant also notes that the Commission issued a guida nce in A pril 2020 regarding
complaint processing due to the pandem ic, and she cites to an example when a dismissal was
reversed when a complainant ’s attor ney had difficult ies filing a forma l complaint in Daniell F. v.
Department of Veterans Affairs , EEOC Appeal Number 2020003857 ( October 6, 2020) .
Complai nant avers that her attempts to get an accommodation in February 2020 th rough he r EEO
contact in October 2020 occurred during the first few months of the pandemic and warrant an
extension of the timeline. However, Complainant offers no expla nation for how the pandemic
affected her ability to contact the EEO o ffice prior to Oc tober 2020. To compare, the
complainant ’s attorney in Daniell F. explained his difficulties due to the pandemic , such as not
having a s canner at h ome and concerns of inadvertent ly tran smitting the viru s to his wi fe with
underlying health conditions . He went through great lengths to safely obtain the complainant ’s
signature and go to his office when it was empty to scan and se nd the com plaint form.
Complainant highlighted that the C ommission ’s April 2020 guidance stated, “agencies and
complainant s will be required to document in the record the reason(s) why tolling any of the time
limits set for th in 29 CFR Part 1614 is necessa ry.”6 Compla inant A ppeal Brief at 19 -20.
However, she provided no justificatio n or documentation for tolling her deadline due to any
challenges created by the pandemic.
Lastly, Complainant argues t hat the AJ ’s one-page decision was arbitrary and capricious because
it did not address any of her specific arguments and simply granted the Agency ’s motion.
Complainant also takes issue with the AJ waiting n ine months to issue the decision, which
corroborates that it was arbi trary and capricious . However, the AJ fully adopt ed the Agency ’s
motio n after a careful review of the eviden tiary r ecord and the parties ’ submissions. W hile
Complainant desired a different outcome , she only offers her opinion that the AJ ’s decision was
arbitrary and capricious to warrant reversal . Notably , Complain ant did n ot ci te to any legal
authority showing that an AJ’s decision without a detailed analysis section , or issued
approximately nine months after the parties ’ filings , was found to be arbi trary and capricious .
We conclude that Co mplainant did not e stablish any error when the AJ granted the Agency ’s
Motion t o Dis miss based on her untimely EEO contact. | Kristie D .,1
Complainant,
v.
Carlos Del Toro,
Secretary,
Department of the Navy,
Agency.
Appeal No. 2023001132
Hearing No. 570-2021-01270X
Agency No. DON-21-67895-00110
DECISION
Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC
or Commission) from the Agency’ s final order dated November 9, 2022, adopting the
Administrative Judge ’s decision dismissing her equal employmen t 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 Section 501 of the Rehabilitation Act of
1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. For t he following r easons, the
Commission AFFIRMS the Agency’ s final order.
ISSUE PRESENTED
The issue presented is whether the Administrative Judge properly dismissed the complaint for untimely EEO contact.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Deputy Assistant
Chief of Staff/ Deputy Director at the Agency’s Marine Corps Installations Command, G-7
Modernization and Innovation Directorate in Washington, D.C.
On December 31, 2020, Complainant filed a formal EEO complaint alleging that the Agency
discriminated against her when:
1) Complainant was subjected to non- sexual harassment on the bases of sex (female) and
disability ( physical ) when :
a) in April 2019, Complainant relayed concerns regarding a leak and the effects the leak
had on her disability (upper respiratory and sinus inf ection) to her first -line supervisor
(“Supervisor ”) in w riting, but no action was take n;
b) on or around March 12, 2020, Complainant learned that she woul d be returning to her
previous workspac e; a HEP A filter would be added; and there was no other space for
her to work in. T he next day, Complainant learned that a Major (a subordinate ),
would be moving to the front office, which runs on a different HVAC s ystem;
c) on or around March 16, 2020, Compl ainant r eques ted sick leave based on her
doctor ’s advice, but her request was denied;
d) in April 2020, Complainant reached out to a Human Resources (HR) Specialist
regarding the Agency ’s plan t o return back to work. The HR S pecialist essentially
threatened t hat Complainant could los e her job based on her need for a reasonable
accommodation and told her to “think carefully about what needs to be done ”;
e) on or around July 2020, Complainant learned that it took five months f or so meone to
complete the 5100/ 9 Medical Referral Form for her workplace injur y; and
f) on or around Augus t 30, 2020, Complainant was excluded from a mee ting with one of
her subordinates about a pilot program; and
2) Complainant was subjected to discrimination ba sed on dis ability whe n on January 29,
2020, she spoke to the Assistant Chief of Staff regarding a reasonable accommodation request, who referred her to the Administrative and R esources Division, H R and
Organizational Management office with out providing any additional assistance, an d
Complainant was not provided a reasonable accommodation.
At the conclusion of the investigation, Complainant was provided a copy of the report of
investigation (ROI) , and she requested a hearing before an EEOC Administrat ive Judge (AJ).
On December 1, 2021, the A gency fi led a Motion to Dismiss as Untimely and Motion of Intent
to Submit Motion for Summary Judgment Pre -Discovery. The Agency argued that the complaint
should be dismissed as untimely. The Agency noted that Com plainant asserted an initial EE O
contact date of October 14, 2020, but the EEO Counselor recorded an initial contact date of
October 29, 2020. However, even using October 14th as the initial contact date, Complainant ’s
contact still occurred beyond her 45- day limit.
2 Compla inant emailed the Assist ant Chief of Staff about her request fo r situational telework, and
the Assistant Chief of Staff responded with a memo regar ding implementation of a telework
agreement. The Supervisor testified that Complainant was autho rized to telework full time from
on or about February 4, 2020, th rough her de parture on August 29, 2020. ROI at 901, 931.
For Complainant ’s allegation o f harassment (claim 1), she noted that the last incident occurred
on August 30, 2020, but she correc ted that the meeting occurred on August 28th, which wa s
corroborated by other evidence in the record. As such, the en tire claim should be dismissed as
untimely. The second claim , which was separate and distinc t from cla im 1, occurred on January
29, 2020, well outside of Complainant ’s 45- day deadline for EEO contact. Even crediting that
the Agency had an ongoing obligatio n to provide a reasonable accommodation, Complainant ’s
final day of employment with the Agency was August 29, 2020, which was still beyond her deadline.
The Agency further asserts tha t Complainant should have known of the 45- day requirement as a
supervisor, with the expect ation of understanding the basi cs of complain t processing. The
Agency also noted that witnesses testi fied that EEO policies and requireme nts were posted
throughout their workspace in bulletin boards. One poster clearly had the 45- day requirement.
The Agency stated that the record was devoid of any evidence that Complainant was unaware of
this req uirement, and yet she failed to contact the EEO office in a timely fashion.
Complainant opposed the Agency’ s motion , asserting that her contact was timely because
August 29, 2020, was merely the last date that the A gency paid her, and she was harassed
through August 31, 2020. The Agency filed a reply t o Complainant ’s opposition, disput ing her
attempts to add incidents that allegedly contributed to her hostile work environment clai m. The
only action Complainant alleged had occurred on August 31, 2020, was the return of her laptop,
but she failed to artic ulate how returning government property was in any way discriminatory or
hostile. The Agency further noted that Complainant previously file d a Motion to Amend, but she
did not mention additional events on August 30 or 31, 2020.
On September 30, 2022, the AJ fully adopted and granted the Agency ’s Motion to Dismiss . The
Agency issued a final order ad opting the AJ ’s decision.
Complainant filed the instant appeal, and she submitted a brief and documents in support of her
appeal .
4 The Agency opposes Complainant ’s appeal.
ANALYSIS AND FINDI NGS
Standar d of Review
In rendering this appellate decision, we must scrutinize the AJ’s legal and factual conclusion s,
and the Agency’s final order adopting them, de novo.
3 Complainant filed her Motion to Amend, and the Agency filed its Motion to Dismiss on the
same date, and there is no indication that the AJ rule d on Complainant ’s motion.
4 Complainant separately complained that the Agency ’s final order contained “false ” statements,
such as the EEO Counselor sought to resolve Complainant ’s alle gations to no avail. However,
the issues raised by Complainant are not materia l to the findings i n the instant appeal.
See 29 C.F.R. § 1614.405(a) (st ating that a “decisi on on an a ppeal from an Agenc y’s final ac tion
shall be based on a de novo review . . .”); se e also Equal Employment Opportunity Management
Directive for 29 C.F.R. Part 1614 (EEO MD -110), at Chap. 9, § VI.B. (A ug. 5, 2015) (providing
that an administrative judge’s de termination to issu e a decision without a hearing, and the
decision itself, will b oth be reviewed de novo). This essentially means that we should look at this
case with f resh eyes. In other words, w e are free to accept (if accurate) or reject (i f erroneou s)
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 statu te was violated. See id. at Chap . 9, § VI.A. (explaining that the
de novo standard of review “requires that t he Commission examine the record without regard to
the factual and legal determinations of the previous decision make r,” and t hat EEOC “review t he
documents, statem ents, and testimony of record, including any timely and relevant submissions
of the parties, and . . . issue its decision based on the Commission’s ow n assessment of the record
and its interpretation of the la w”).
New Evidence on Appeal As a general ru le, no new evidence will be considered on appeal unless there is an affirmative
showing that the evidence was not reasonably available prior to or during the investigation. See
EEO MD -110 at Chap. 9, § VI.A.3. Here, Complainant has not provided arguments or evidence
to show that these new materials were not available during the investigation, or any explanation as to why they were not provided to the investigator during the investigative stage . Further, she
did not provide this new evidence with her opposit ion to the Agency’ s Motion to D ismiss.
However, for the sake of argument, we find that even if this evidence is considered on appeal,
the evidence does not alter our final disposition that Complainant failed to prove that her EEO
contact was timely or that her deadli ne should be tolled.
Timely EEO Contact
EEOC regulation requires that complaint s of disc rimination s hould be brought to the attention of
the EEO counselor within forty- five (45) days of the date of the matter alleged to be
discriminatory or, i n the case of a personnel action, within forty- five (45) days of the effective
date of the a ction. 29 C.F.R. § 1614.105(a)(1). Here, the EEO Counselor noted Complainant ’s
initial contact date as October 29, 2020, while Complainant listed it as October 14, 2020. ROI at
8, 17. However, with her opposition to the Agen cy’s motion , Complainant attached an email
from her previous attorney initiating the informal EEO complaint on October 14, 2020.
Complainant ’s Oppositi on to Agency’ s Motion to Dismiss as Untimely and Motion of Intent to
Submit Motion for Judgment Pre -discovery, Exhibit A. As such , we fin d that Complainant
established her initial EEO contact date as October 14, 2020, and events prior to August 30,
2020, are considered untimely. In her formal EEO c omplaint, Complai nant alleged that the most recent discriminatory event
occurred on August 30, 2020, when the Supervisor held a meeting with one of Complainant ’s
subordinates, but he failed to i nclude Complainant in the meeting. ROI at 8, 14.
However, Complainant provided in her sworn declaration that the Supervisor excluded her from
the meeting on August 28, 2020. ROI at 271. The S upervisor testified that there was no meeting
on August 30, 2020, but there was a meeting on August 28th. He added that he did not s chedule
the Commander ’s meetings, but since it was Complainant ’s last day with the comma nd, her
participation in a meeting to discuss a long- term project was not necessary . ROI at 948. We find
that th is evidence established that t he meeting at issue o ccurred on August 28, 2020, maki ng her
harassment claim untimely.
On appeal, Complainant asserts t hat the operative end date of her employment with the Agency
was August 31, 2020, because she communicated with her direct report on that date and returned
her work laptop th e day after August 31, 2020. Therefore, her reasonable accommodation requ est
was ongoing through the last date of her emplo yment of August 31, 2020 (claim 2) , making her
complaint timely. As support ing evidence, Complainant provi ded two emails sent to a cowo rker.
On August 30, 2020, she wrote from her personal em ail acco unt, “You are so fantastic…Thank
you!” and on August 31, 2020, she t hanked him for sending information . Complainant also
emailed her personnel documents to her private email address on August 30, 2020. Howe ver, we
are not persuaded by Complainant ’s contentions because non e of these emails indicate d that she
was still performing her duties or that she was still considered employed by the Agency .
Rather, in the August 31
st email to the coworker , Complainant informed him that she was “just
on-boarding,” after he wished her good luc k in her new position. The record shows that
Complainant notif ied her management officials that she would transition to another agency on
August 29, 2020. She also testified that she “left the Command on August 29, 2020,” and she
started h er new position on August 30, 2020. ROI at 1641, 300-1. Complainant has not explained
why the Commission should disregard her previously sworn testimony that was co nsistent with
her email stating that she was on -boarding into her new position on August 31st. Further, t he
Agency submitted a copy of Complai nant’s official SF-50 form noting the end date of her
employment as August 29, 2020. Agency Motion to Dismiss, Attachm ent 1. A ccordingly, we
find that Complainant has not proven that her employment with the Agency extended through
August 31, 2020.
Complainant also argues that the Agency provided improper notice of her 45 -day deadline to
contact the EEO office. EEOC regu lation provides that an 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 di scriminatory matter or personnel action occurred, that despite due diligence she was
prevented by circumstances beyond her control from contacting the EEO Counselor within the
time limits, or for other reasons considered sufficient by the agency or the Com mission. 29
C.F.R. § 1614.105(a)(2).
Complainant notes that the Commission has previous ly fo und that a gene ralized affi rmation that
an agency posted EEO information, without specific evidence that the poster contained the specified time limits , was insuff icient to demonstrate constructive notice of the 45- day deadline.
However, we find that the Agency offered more than a generalized affirmation of the posted
EEO information. T he Agency submitted a copy of its EEO notice , which show s the 45- day
deadline twi ce in a red font to contrast the remaining black text . ROI at 107.
In addition, G-7 coworkers testified to witness ing the poste rs in the ir shared workspace. They
responded that EEO policies and posters were “ [i]n prominent, high traffic locatio ns for al l to
view, ” and “[o]n read boards around the office. ” ROI at 1553, 1566. The S upervisor
corroborated that the materials were “[a]t a mi nimum on the read board outs ide of the door of
2D153A.5 Also posted on various walls around t he space. ” ROI at 963. W hile Complainant
asser ts that she had not physically been to her office since February 2020, she testified that her
first day in the office was Januar y 23, 2019. ROI at 239. As such, Complainant had the
opportunity to read these posters for approximately one ye ar, and sh e has not proven that she
could not have reasonably known the deadline.
Com plainant further contends that the EEO Counselor did not inform her that her complaint
could be di smissed if she did not meet the 45 -day de adline . However, the Commissi on has found
that constructive knowle dge will be imputed where an agency has fulfilled i ts sta tutory
obligation by posting notices informing employees of their rights and obligations unde r EEO
regulations, as long as the record contains sufficient informat ion from w hich the C ommission
could find that the poster contained notice of the time li mit for initiating EEO counseling. S ee
Hedy B. Dep ’t of Homeland Security, EEOC Appeal No. 2021002516 (Jun. 8, 2021); Yashuk v.
U.S. Postal Serv., EEOC Request No. 05890382 (Jun. 2, 1989) . We find that the Agency met its
obligation by placing its EEO poste r highlighting the 45- day deadline to initiate EEO couns eling
in Complainant ’s work area, which was corroborated by multiple G -7 employees.
Complainant argues that th e Commiss ion has tolled deadline s when complainant s relied on
advic e from the EEO office to their detriment, and that in her case, she relied on Agency
officials ’ expertise to address her office hazards when she was advised to file a workers ’
compensation claim inste ad of requesting a reasonable a ccommodation. However, we find that
Complainant ’s arguments are mispla ced because any advice related to whether Complainant
should have utilized the reasonable accommodation process or filed a workers ’ compensation
claim has no bearing on her dead line to cont act the EEO office to allege discrimination . 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 misinfor ming the complainant. See Wilkinson v. U.S. Postal Serv., EEOC Request No.
05950205 (Mar. 25, 1996). See also Elijah v. Dep’t of the Army, EEOC Request No. 05950632
(Mar. 28, 1996) (if agency officials misled complainant into waiting to initiate EE O counse ling,
agency must extend time limit for contacting EEO Counselor). Here, Complainant offers no
arguments or evidence that any Agency offic ial misled her about initiating her EEO complaint.
5 Complainant id entified 2D153A as the suite that she worked in. ROI at 301, 275.
Complainant also notes that the Commission issued a guida nce in A pril 2020 regarding
complaint processing due to the pandem ic, and she cites to an example when a dismissal was
reversed when a complainant ’s attor ney had difficult ies filing a forma l complaint in Daniell F. v.
Department of Veterans Affairs , EEOC Appeal Number 2020003857 ( October 6, 2020) .
Complai nant avers that her attempts to get an accommodation in February 2020 th rough he r EEO
contact in October 2020 occurred during the first few months of the pandemic and warrant an
extension of the timeline. However, Complainant offers no expla nation for how the pandemic
affected her ability to contact the EEO o ffice prior to Oc tober 2020. To compare, the
complainant ’s attorney in Daniell F. explained his difficulties due to the pandemic , such as not
having a s canner at h ome and concerns of inadvertent ly tran smitting the viru s to his wi fe with
underlying health conditions . He went through great lengths to safely obtain the complainant ’s
signature and go to his office when it was empty to scan and se nd the com plaint form.
Complainant highlighted that the C ommission ’s April 2020 guidance stated, “agencies and
complainant s will be required to document in the record the reason(s) why tolling any of the time
limits set for th in 29 CFR Part 1614 is necessa ry.”6 Compla inant A ppeal Brief at 19 -20.
However, she provided no justificatio n or documentation for tolling her deadline due to any
challenges created by the pandemic.
Lastly, Complainant argues t hat the AJ ’s one-page decision was arbitrary and capricious because
it did not address any of her specific arguments and simply granted the Agency ’s motion.
Complainant also takes issue with the AJ waiting n ine months to issue the decision, which
corroborates that it was arbi trary and capricious . However, the AJ fully adopt ed the Agency ’s
motio n after a careful review of the eviden tiary r ecord and the parties ’ submissions. W hile
Complainant desired a different outcome , she only offers her opinion that the AJ ’s decision was
arbitrary and capricious to warrant reversal . Notably , Complain ant did n ot ci te to any legal
authority showing that an AJ’s decision without a detailed analysis section , or issued
approximately nine months after the parties ’ filings , was found to be arbi trary and capricious .
We conclude that Co mplainant did not e stablish any error when the AJ granted the Agency ’s
Motion t o Dis miss based on her untimely EEO contact.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, inc luding those not
specifically addressed herein, we AFFIRM the Agency ’s final order a dopting the AJ ’s decision .
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M 0124.1)
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 es tablish that:
6 https://www.eeoc.gov/processing- information- all-parties -federal -eeo-processing -under -29-cfr-
part-1614.
1. The appe llate decision involved a clearly erroneo us interpretation of material fact or
law; or
2. The appellate decision will have a substantia l impact on the policies, practices, or
operations of the agency.
Requests for r econsiderat ion 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
reconsiderat ion elects to file a statement or brief in support of the request, that statement or
brief m ust be filed together with the request for reconsideration . A party shall have twenty
(20) calendar days from receipt of another party’s request for re consideratio n within which to
submit a brief or statement in opposition. See 29 C.F.R. § 1614.405; Equa l Employment
Opportunity Ma nagement 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 Publi c Portal, which can be found at
https://publicportal.eeoc.gov/Portal/Login.aspx
Alter natively, Complainant can submit their request and arguments to the Director, Office of
Feder al Operatio ns, Equal Employment Opport unity Commission, via regular mail addres sed to
P.O. Box 77960, Washington, DC 20013, or by cert ified 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 tim ely filed if OFO receives it by mail with in 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
Fede ral Sector EEO Portal (FedS EP). See 29 C.F.R. § 1614.403(g). Eithe r party’s request
and/or statement or brief in oppositi on must also include proof of service on the other party,
unless Complainant files their request via the EEOC Public Porta l, in which case no proof of
service i s required.
Failure to file within the 3 0-day time period will result in dismissal of the party’s request for
reconsideratio n as untimel y, unless extenuating circumstances prevented the timely filing of the
request. Any support ing documentation must be s ubmitted toge ther with the request for
reconsideration. The Commission will consider requests for reconsideration filed afte r the
deadli ne 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 actio n 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
depar tment 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 t he national organization, and not the local office, facility or department in w hich you
work. If you file a request to reconsider and also file a civil action, fil ing 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 f ees, costs, or security to do so, you may
request permission from the court to proce ed 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 appointme nt of an attorney directly to the court, not the Commission. The
court has the sole discreti on to grant or deny these t ypes of requests. Such requests do not al ter
the time limits for filing a civil action (please read the paragraph titled Comp lainant’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 7, 2024
Date | [
"Yashuk v. U.S. Postal Serv., EEOC Request No. 05890382 (Jun. 2, 1989)",
"Wilkinson v. U.S. Postal Serv., EEOC Request No. 05950205 (Mar. 25, 1996)",
"Elijah v. Dep’t of the Army, EEOC Request No. 05950632 (Mar. 28, 1996)",
"29 C.F.R. § 1614.405(a)",
"29 C.F.R. § 1614.105(a)",
"29 C.F.R. § 1614.405",
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118 | https://www.eeoc.gov/sites/default/files/migrated_files/decisions/0120121588.r.txt | 0120121588.r.txt | TXT | text/plain | 19,643 | Lanita Roney, Complainant, v. Michael B. Donley, Secretary, Department of the Air Force, Agency. | February 14, 2012 | Appeal Number: 0120121588
Background:
During the period at issue, Complainant worked in various positions at the Agency's Cheli School facility in Misawa, Japan.
By Order of Dismissal dated September 20, 2011, an EEOC Administrative Judge (AJ) set forth the following chronology of events. Complainant filed several requests for a hearing with the EEOC commencing approximately on June 30, 2011. On August 3, 2011, Complainant's attorney set forth the following: "the Complainant submitted her formal complaint of discrimination to the Agency's EEO Officer...by email dated August 10, 201[0]...However, the Agency refused to process or even acknowledge Complainant's formal complaint and therefore did not assign a docket number, nor did the Agency conduct any type of investigation."
According to the AJ's Order of Dismissal, the AJ received a letter from the Agency stating "on [August 10, 2010] the [EEO Office] received an email from [Complainant's] attorney...requesting our office process a formal complaint of discrimination on behalf of his client. In response to his request, a [named EEO Director] provided guidance to [Complainant's attorney] on the proper procedures for filing an informal complaint." The AJ ordered the following:
1) Agency shall consider the August [10], 2010 complaint as a request for counseling and shall within 30 days from the date of this Order contact Complainant and commence counseling.
2) Agency shall complete counseling no later than 45 days from the date of this Order and shall give Complainant written notice of her right to file a formal complaint, in the usual manner, and with the usual timeframes..."
3) Once Complainant has filed her formal complaint, Agency shall accept or dismiss individual claims as it sees fit, and then complete an investigation in no more than 150 days from the date of the formal complaint. Agency shall not dismiss the complaint for untimeliness unless it contends, and can show, the original August [10], 2010 date was not timely.
In its final decision, dated February 14, 2012, the Agency determined that Complainant's complaint was comprised of the following claims:
1. October 2008, Complainant was allegedly subjected to a racially offensive comment when an Agency employee allegedly made a statement that a black child's behavioral problem is due to him growing up in the ghetto.
2. November 2008, when Complainant was allegedly subjected to a racially offensive comment when [a named agency employee] allegedly made a statement to another employee that he could not transfer to the Teen Center because too many blacks work there already and the flight has gone to the dark side.
3. November 2008, when Complainant allegedly asked [a named manager] why [a named Caucasian employee] was promoted over her, she allegedly said it was because she was white, and leadership allegedly said it had enough black people in management positions.
4. November 2008, after [a named black agency employee] quit his position as supervisor, Complainant allegedly asked a [named Filipino employee] who got his job and [the named Filipino employee] replied she did and Complainant did not because Complainant is black and a troublemaker.
5. August 14, 2009, when Complainant was allegedly subjected to racially offensive behavior when [a named Caucasian agency official] came in to Cheli Schoolage Program complaining about the way they were handling registration and allegedly said, "you people make up your own rules."
6. September 17, 2009, when [a named agency official] allegedly sent Complainant an email stating she had stolen a box, files, and documents from the Cheli Schoolage Program.
The Agency dismissed Complainant's formal complaint on the grounds of untimely EEO Counselor contact. Specifically, the Agency stated that "the court ordered contact date of August 8, 2010, was 326 days from the date of the last alleged claim, which was [September 17, 2009]."
CONTENTIONS ON APPEAL
On appeal, Complainant, through her attorney, asserts that the Agency's final decision dismissing her formal complaint is improper. Complainant, in a declaration under penalty of perjury, asserts that she made various efforts to contact an EEO Counselor and sets forth the following chronology of events. In January 2009, Complaint asserts that she went to the EEO Office in Misawa, Japan and filed an informal complaint. Specifically, Complainant asserts that she spoke with a military member who was working in the EEO Office at that time and he stated he would give Complainant's complaint to the EEO Director (E1). Complainant states that she did not hear back from E1 at this time, and that in mid-February 2009, she went to the EEO Office again to find out the status of her complaint. Complainant asserts that she spoke with a military member and was told that E1 was in a meeting and that the military member said he would leave a message for E1 that Complainant had stopped by. Complainant states that in September 2009, her supervisor went with her to the EEO Office but the EEO Officer was not in.1 Complainant further asserts that she made calls to the EEO Office on the following dates in 2009: February 4, 13, 16 ,19; March 10, 18; April 3, 17, 28; May 1; August 3, 17; September 10, 17,; November 11, 12, and 13. Complainant asserts that there was no response to her phone calls. Complainant states that she left Japan in December 2009, and that she subsequently met with an attorney. Complainant asserts that in August 2010, her attorney filed a formal complaint with the EEO Office.
In response, the Agency requests we affirm its final decision dismissing Complainant's complaint. The Agency states that there is no indication that Complainant initiated EEO contact until August 10, 2010. The Agency asserts that while Complainant states that she visited and contacted the Misawa EEO Office during 2009, she has not presented any credible evidence to substantiate her claims. Specifically, the Agency states regarding Complainant's emails to the EEO Director (E1) during the relevant time period that "it appears Complainant tried to send the email twice. No explanation is provided for the initial email, followed almost immediately by a second email, to purportedly the same individual, albeit with a different email address...[one of the emails] was likely an undeliverable email address because the name "misawa" is misspelled. However, no delivery documentation, read receipt, error...[is included by Complainant]." The Agency also provides an affidavit from an Agency EEO employee. Therein, the EEO employee asserts that she has checked the physical and electronic records regarding contact by Complainant, and has not found anything. The record also contains an affidavit from an individual that served as an EEO Counselor at Misawa from April 2006 to June 2011. Therein, the EEO Counselor asserts that she is not aware of any attempts by Complainant to contact the EEO Office in person or by phone or email. The EEO Counselor also asserts that she conducted a search of her email and the "EO organizational inbox" and found no messages from Complainant. Finally, the record contains a memorandum to the record from E1, who is currently retired. Therein, E1 asserted that he did not recall any emails or phone calls from Complainant during the time he served as the EEO Director.
Legal Analysis:
EEOC Regulation 29 C.F.R. § 1614.105(a)(1) requires that complaints of discrimination should be brought to the attention of the Equal Employment Opportunity Counselor within forty-five (45) days of the date of the matter alleged to be discriminatory or, in the case of a personnel action, within forty-five (45) days of the effective date of the action. The Commission has adopted a "reasonable suspicion" standard (as opposed to a "supportive facts" standard) to determine when the forty-five (45) day limitation period is triggered. See Howard v. Dep't of the Navy, EEOC Request No. 05970852 (Feb. 11, 1999). Thus, the time limitation is not triggered until a complainant reasonably suspects discrimination, but before all the facts that support a charge of discrimination have become apparent.
EEOC Regulations provide that the agency or the Commission shall extend the time limits when the individual shows that she was not notified of the time limits and was not otherwise aware of them, that she did not know and reasonably should not have known that the discriminatory matter or personnel action occurred, that despite due diligence she was prevented by circumstances beyond her control from contacting the Counselor within the time limits, or for other reasons considered sufficient by the agency or the Commission.
The Agency improperly dismissed Complainant's formal complaint. Complainant asserts that she made various efforts to contact an EEO Counselor to initiate the EEO process, including phone calls and emails. The record contains a copy of email from Complainant to an Agency EEO Director (E1) during the relevant time period, dated September 10, 2009. Therein, Complainant asserts that she has been subjected to a racially hostile work environment and is seeking assistance. In its response brief, the Agency asserts that this email was sent twice by Complainant and one of the times the email address for E1 appears to be incorrect. However, we note that Complainant also on September 10, 2009, sent the email from her work address to E1, which appears to be the E1's correct email address. We find that the Agency improperly placed the burden of proof on the issue of timeliness on Complainant; rather, than itself. 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." See 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 addition, in Ericson v. Dep't of the Army, EEOC Request No. 05920623 (Jan. 14, 1993), the Commission stated that "the agency has the burden of providing evidence and/or proof to support its final decision. See also Gens v. Dep't of Defense, EEOC Request No. 05910837 (Jan. 31, 1992). In the instant matter, we find that the Agency has not met this burden.2
We note that Complainant is alleging a hostile work environment and that at least one of the alleged incidents occurred within 45 days of her September 10, 2009 contact date (i.e. the date of claim (4) is August 14, 2009). The Commission has held that "[b]ecause the incidents that make up a hostile work environment claim collectively constitute one unlawful employment practice, the entire claim is actionable, as long, as at least one incident that is part of the claim occurred within the filing period. This includes incidents that occurred outside the filing period that the [Complainant] knew or should have known were actionable at the time of their occurrence." EEOC Compliance Manual, Section 2, Threshold Issues at 2 -- 75 (revised July 21, 2005) (citing National Railroad Passenger Corp. v. Morgan, 536 U.S. 101, 117 (2002)). Based on the foregoing, we find that Complainant timely contacted an EEO Counselor with respect to her hostile work environment claim. | Lanita Roney,
Complainant,
v.
Michael B. Donley,
Secretary,
Department of the Air Force,
Agency.
Appeal No. 0120121588
Hearing No. 480-2011-00530X
Agency No. 9TOR12001
DECISION
Complainant filed a timely appeal with this Commission from the Agency's final decision dated February 14, 2012, dismissing a formal complaint of unlawful employment discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. § 2000e et seq.
BACKGROUND
During the period at issue, Complainant worked in various positions at the Agency's Cheli School facility in Misawa, Japan.
By Order of Dismissal dated September 20, 2011, an EEOC Administrative Judge (AJ) set forth the following chronology of events. Complainant filed several requests for a hearing with the EEOC commencing approximately on June 30, 2011. On August 3, 2011, Complainant's attorney set forth the following: "the Complainant submitted her formal complaint of discrimination to the Agency's EEO Officer...by email dated August 10, 201[0]...However, the Agency refused to process or even acknowledge Complainant's formal complaint and therefore did not assign a docket number, nor did the Agency conduct any type of investigation."
According to the AJ's Order of Dismissal, the AJ received a letter from the Agency stating "on [August 10, 2010] the [EEO Office] received an email from [Complainant's] attorney...requesting our office process a formal complaint of discrimination on behalf of his client. In response to his request, a [named EEO Director] provided guidance to [Complainant's attorney] on the proper procedures for filing an informal complaint." The AJ ordered the following:
1) Agency shall consider the August [10], 2010 complaint as a request for counseling and shall within 30 days from the date of this Order contact Complainant and commence counseling.
2) Agency shall complete counseling no later than 45 days from the date of this Order and shall give Complainant written notice of her right to file a formal complaint, in the usual manner, and with the usual timeframes..."
3) Once Complainant has filed her formal complaint, Agency shall accept or dismiss individual claims as it sees fit, and then complete an investigation in no more than 150 days from the date of the formal complaint. Agency shall not dismiss the complaint for untimeliness unless it contends, and can show, the original August [10], 2010 date was not timely.
In its final decision, dated February 14, 2012, the Agency determined that Complainant's complaint was comprised of the following claims:
1. October 2008, Complainant was allegedly subjected to a racially offensive comment when an Agency employee allegedly made a statement that a black child's behavioral problem is due to him growing up in the ghetto.
2. November 2008, when Complainant was allegedly subjected to a racially offensive comment when [a named agency employee] allegedly made a statement to another employee that he could not transfer to the Teen Center because too many blacks work there already and the flight has gone to the dark side.
3. November 2008, when Complainant allegedly asked [a named manager] why [a named Caucasian employee] was promoted over her, she allegedly said it was because she was white, and leadership allegedly said it had enough black people in management positions.
4. November 2008, after [a named black agency employee] quit his position as supervisor, Complainant allegedly asked a [named Filipino employee] who got his job and [the named Filipino employee] replied she did and Complainant did not because Complainant is black and a troublemaker.
5. August 14, 2009, when Complainant was allegedly subjected to racially offensive behavior when [a named Caucasian agency official] came in to Cheli Schoolage Program complaining about the way they were handling registration and allegedly said, "you people make up your own rules."
6. September 17, 2009, when [a named agency official] allegedly sent Complainant an email stating she had stolen a box, files, and documents from the Cheli Schoolage Program.
The Agency dismissed Complainant's formal complaint on the grounds of untimely EEO Counselor contact. Specifically, the Agency stated that "the court ordered contact date of August 8, 2010, was 326 days from the date of the last alleged claim, which was [September 17, 2009]."
CONTENTIONS ON APPEAL
On appeal, Complainant, through her attorney, asserts that the Agency's final decision dismissing her formal complaint is improper. Complainant, in a declaration under penalty of perjury, asserts that she made various efforts to contact an EEO Counselor and sets forth the following chronology of events. In January 2009, Complaint asserts that she went to the EEO Office in Misawa, Japan and filed an informal complaint. Specifically, Complainant asserts that she spoke with a military member who was working in the EEO Office at that time and he stated he would give Complainant's complaint to the EEO Director (E1). Complainant states that she did not hear back from E1 at this time, and that in mid-February 2009, she went to the EEO Office again to find out the status of her complaint. Complainant asserts that she spoke with a military member and was told that E1 was in a meeting and that the military member said he would leave a message for E1 that Complainant had stopped by. Complainant states that in September 2009, her supervisor went with her to the EEO Office but the EEO Officer was not in.1 Complainant further asserts that she made calls to the EEO Office on the following dates in 2009: February 4, 13, 16 ,19; March 10, 18; April 3, 17, 28; May 1; August 3, 17; September 10, 17,; November 11, 12, and 13. Complainant asserts that there was no response to her phone calls. Complainant states that she left Japan in December 2009, and that she subsequently met with an attorney. Complainant asserts that in August 2010, her attorney filed a formal complaint with the EEO Office.
In response, the Agency requests we affirm its final decision dismissing Complainant's complaint. The Agency states that there is no indication that Complainant initiated EEO contact until August 10, 2010. The Agency asserts that while Complainant states that she visited and contacted the Misawa EEO Office during 2009, she has not presented any credible evidence to substantiate her claims. Specifically, the Agency states regarding Complainant's emails to the EEO Director (E1) during the relevant time period that "it appears Complainant tried to send the email twice. No explanation is provided for the initial email, followed almost immediately by a second email, to purportedly the same individual, albeit with a different email address...[one of the emails] was likely an undeliverable email address because the name "misawa" is misspelled. However, no delivery documentation, read receipt, error...[is included by Complainant]." The Agency also provides an affidavit from an Agency EEO employee. Therein, the EEO employee asserts that she has checked the physical and electronic records regarding contact by Complainant, and has not found anything. The record also contains an affidavit from an individual that served as an EEO Counselor at Misawa from April 2006 to June 2011. Therein, the EEO Counselor asserts that she is not aware of any attempts by Complainant to contact the EEO Office in person or by phone or email. The EEO Counselor also asserts that she conducted a search of her email and the "EO organizational inbox" and found no messages from Complainant. Finally, the record contains a memorandum to the record from E1, who is currently retired. Therein, E1 asserted that he did not recall any emails or phone calls from Complainant during the time he served as the EEO Director.
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. Dep't of the Navy, EEOC Request No. 05970852 (Feb. 11, 1999). Thus, the time limitation is not triggered until a complainant reasonably suspects discrimination, but before all the facts that support a charge of discrimination have become apparent.
EEOC Regulations provide that the agency or the Commission shall extend the time limits when the individual shows that she was not notified of the time limits and was not otherwise aware of them, that she did not know and reasonably should not have known that the discriminatory matter or personnel action occurred, that despite due diligence she was prevented by circumstances beyond her control from contacting the Counselor within the time limits, or for other reasons considered sufficient by the agency or the Commission.
The Agency improperly dismissed Complainant's formal complaint. Complainant asserts that she made various efforts to contact an EEO Counselor to initiate the EEO process, including phone calls and emails. The record contains a copy of email from Complainant to an Agency EEO Director (E1) during the relevant time period, dated September 10, 2009. Therein, Complainant asserts that she has been subjected to a racially hostile work environment and is seeking assistance. In its response brief, the Agency asserts that this email was sent twice by Complainant and one of the times the email address for E1 appears to be incorrect. However, we note that Complainant also on September 10, 2009, sent the email from her work address to E1, which appears to be the E1's correct email address. We find that the Agency improperly placed the burden of proof on the issue of timeliness on Complainant; rather, than itself. 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." See 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 addition, in Ericson v. Dep't of the Army, EEOC Request No. 05920623 (Jan. 14, 1993), the Commission stated that "the agency has the burden of providing evidence and/or proof to support its final decision. See also Gens v. Dep't of Defense, EEOC Request No. 05910837 (Jan. 31, 1992). In the instant matter, we find that the Agency has not met this burden.2
We note that Complainant is alleging a hostile work environment and that at least one of the alleged incidents occurred within 45 days of her September 10, 2009 contact date (i.e. the date of claim (4) is August 14, 2009). The Commission has held that "[b]ecause the incidents that make up a hostile work environment claim collectively constitute one unlawful employment practice, the entire claim is actionable, as long, as at least one incident that is part of the claim occurred within the filing period. This includes incidents that occurred outside the filing period that the [Complainant] knew or should have known were actionable at the time of their occurrence." EEOC Compliance Manual, Section 2, Threshold Issues at 2 -- 75 (revised July 21, 2005) (citing National Railroad Passenger Corp. v. Morgan, 536 U.S. 101, 117 (2002)). Based on the foregoing, we find that Complainant timely contacted an EEO Counselor with respect to her hostile work environment claim.
CONCLUSION
Accordingly, we REVERSE the Agency's final decision dismissing Complainant's complaint and we REMAND this matter to the Agency for further processing in accordance with the ORDER below.
ORDER (E0610)
The Agency is ordered to process the remanded claims in accordance with 29 C.F.R. § 1614.108. The Agency shall acknowledge to the Complainant that it has received the remanded claims within thirty (30) calendar days of the date this decision becomes final. The Agency shall issue to Complainant a copy of the investigative file and also shall notify Complainant of the appropriate rights within one hundred fifty (150) calendar days of the date this decision becomes final, unless the matter is otherwise resolved prior to that time. If the Complainant requests a final decision without a hearing, the Agency shall issue a final decision within sixty (60) days of receipt of Complainant's request.
A copy of the Agency's letter of acknowledgment to Complainant and a copy of the notice that transmits the investigative file and notice of rights must be sent to the Compliance Officer as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0610)
Compliance with the Commission's corrective action is mandatory. The Agency shall submit its compliance report within thirty (30) calendar days of the completion of all ordered corrective action. The report shall be submitted to the Compliance Officer, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC 20013. The Agency's report must contain supporting documentation, and the Agency must send a copy of all submissions to the Complainant. If the Agency does not comply with the Commission's order, the Complainant may petition the Commission for enforcement of the order. 29 C.F.R. § 1614.503(a). The Complainant also has the right to file a civil action to enforce compliance with the Commission's order prior to or following an administrative petition for enforcement. See 29 C.F.R. §§ 1614.407, 1614.408, and 29 C.F.R. § 1614.503(g). Alternatively, the Complainant has the right to file a civil action on the underlying complaint in accordance with the paragraph below entitled "Right to File a Civil Action." 29 C.F.R. §§ 1614.407 and 1614.408. A civil action for enforcement or a civil action on the underlying complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c) (1994 & Supp. IV 1999). If the Complainant files a civil action, the administrative processing of the complaint, including any petition for enforcement, will be terminated. See 29 C.F.R. § 1614.409.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
The Commission may, in its discretion, reconsider the decision in this case if the Complainant or the Agency submits a written request containing arguments or evidence which tend to establish that:
1. The appellate decision involved a clearly erroneous interpretation of material fact or law; or
2. The appellate decision will have a substantial impact on the policies, practices, or operations of the Agency.
Requests to reconsider, with supporting statement or brief, must be filed with the Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision or within twenty (20) calendar days of receipt of another party's timely request for reconsideration. See 29 C.F.R. § 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at 9-18 (November 9, 1999). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC 20013. In the absence of a legible postmark, the request to reconsider shall be deemed timely filed if it is received by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. The request or opposition must also include proof of service on the other party.
Failure to file within the time period will result in dismissal of your request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted with your request for reconsideration. The Commission will consider requests for reconsideration filed after the deadline only in very limited circumstances. See 29 C.F.R. § 1614.604(c).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (R0610)
This is a decision requiring the Agency to continue its administrative processing of your complaint. However, if you wish to file a civil action, you have the right to file such action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision. In the alternative, you may file a civil action after one hundred and eighty (180) calendar days of the date you filed your complaint with the Agency, or filed your appeal with the Commission. If you file a civil action, you must name as the defendant in the complaint the person who is the official Agency head or department head, identifying that person by his or her full name and official title. Failure to do so may result in the dismissal of your case in court. "Agency" or "department" means the national organization, and not the local office, facility or department in which you work. Filing a civil action will terminate the administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z0610)
If you decide to file a civil action, and if you do not have or cannot afford the services of an attorney, you may request from the Court that the Court appoint an attorney to represent you and that the Court also permit you to file the action without payment of fees, costs, or other security. See Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq.; the Rehabilitation Act of 1973, as amended, 29 U.S.C. §§ 791, 794(c). The grant or denial of the request is within the sole discretion of the Court. Filing a request for an attorney with the Court does not extend your time in which to file a civil action. Both the request and the civil action must be filed within the time limits as stated in the paragraph above ("Right to File a Civil Action").
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
July 18, 2012
Date
1 The record contains a declaration under penalty of perjury from Complainant's supervisor. Therein, she provides, in relevant part, that she went with Complainant in September 2009, to the EEO Office but the EEO Officer was not in his office. Complainant's supervisor asserts that Complainant continued to contact the EEO Office with no resolution.
2 The Agency provides an affidavit that it searched its hard copy and electronic files and that there is no record of Complainant's EEO contact prior to August 10, 2010. However, it is unclear from the Agency's affidavit if it searched the emails records of the named EEO Director (E1), who is currently retired from the Agency. In addition, while the record contains an affidavit from an EEO Counselor that she searched her email inbox and "the EO organizational inbox", it is unclear whether the Agency expressly searched E1's mail inbox during the relevant period.
------------------------------------------------------------
------------------------------------------------------------
01-0121588
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119 | https://www.eeoc.gov/sites/default/files/migrated_files/decisions/0120152440.r.txt | 0120152440.r.txt | TXT | text/plain | 15,607 | Trent M.,1 Complainant, v. Eric Fanning, Acting Secretary, Department of the Army, Agency. | January 14, 2015 | Appeal Number: 0120152440
Background:
During the period at issue, Complainant worked as an Explosives Material Handler, WG-6502-06, at the Agency's Blue Grass Army Depot, Industrial Services Division in Richmond, Kentucky.
On October 7, 2014, Complainant initiated EEO Counselor contact. Informal efforts to resolve his concerns were unsuccessful.
On December 22, 2014, Complainant filed the instant formal complaint. Therein, Complainant claimed that he was subjected to harassment and a hostile work environment in reprisal for prior EEO activity when:
a. on September 10, 2014, the EEO Officer spoke with him privately and denied talking about him, indicating she did not know who was saying she was talking about him;
b. on August 20, 2014, his supervisor notified him that he was no longer assigned to work in the paint shop;
c. on August 19, 2014, the EEO Officer violated the Privacy Act and also defamed him by telling an employee that he was trouble;
d. on August 18, 2014, the supervisor gathered his employees together and apologized for returning Complainant to the paint shop; and
e. on August 11, 2014, he was denied a WG-6, Explosives Material Handler position because of defamation by the EEO Officer.
In its January 14, 2015 final decision, the Agency dismissed claims a - b and d - e 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 October 7, 2014, which it found to be beyond the 45-day limitation period for making timely EEO contact.
The Agency dismissed claims a - b, c concerning defamation, and d - e, pursuant to 29 C.F.R. § 1614.107(a)(1), for failure to state a claim finding that Complainant was not aggrieved. The Agency found that unless the conduct is severe, a single incident or group of isolated incidents will not be considered discriminatory harassment.
The Agency also dismissed claims b, d and e (harassment claim) on the alternative grounds that the claim had not been raised with an EEO Counselor and that it is not like and related to matters for which Complainant underwent EEO counseling, pursuant to 29 C.F.R. § 1614.107(a)(2).
Finally, the Agency dismissed portion of claim c concerning the EEO Officer violating the Privacy Act on the grounds of failure to state a claim, finding that the Commission has no jurisdiction over enforcing the Privacy Act.
The instant appeal followed.
Legal Analysis:
the Commission has no jurisdiction over enforcing the Privacy Act.
The instant appeal followed.
ANALYSIS AND FINDINGS
Not like or related to a matter that has been brought to EEO Counselor (claims b, d and e)
The Agency found that claim b, d and e should be dismissed because they were not raised before the EEO Counselor. We note, however, that pursuant to 29 C.F.R. § 1614.106(d), a complainant may amend a complaint at any time prior to the | Trent M.,1
Complainant,
v.
Eric Fanning,
Acting Secretary,
Department of the Army,
Agency.
Appeal No. 0120152440
Agency No. ARJMC14SEP03854
DECISION
Complainant filed a timely appeal with this Commission from the Agency's final decision dated January 14, 2015, dismissing a formal complaint of unlawful employment discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. § 2000e et seq.
BACKGROUND
During the period at issue, Complainant worked as an Explosives Material Handler, WG-6502-06, at the Agency's Blue Grass Army Depot, Industrial Services Division in Richmond, Kentucky.
On October 7, 2014, Complainant initiated EEO Counselor contact. Informal efforts to resolve his concerns were unsuccessful.
On December 22, 2014, Complainant filed the instant formal complaint. Therein, Complainant claimed that he was subjected to harassment and a hostile work environment in reprisal for prior EEO activity when:
a. on September 10, 2014, the EEO Officer spoke with him privately and denied talking about him, indicating she did not know who was saying she was talking about him;
b. on August 20, 2014, his supervisor notified him that he was no longer assigned to work in the paint shop;
c. on August 19, 2014, the EEO Officer violated the Privacy Act and also defamed him by telling an employee that he was trouble;
d. on August 18, 2014, the supervisor gathered his employees together and apologized for returning Complainant to the paint shop; and
e. on August 11, 2014, he was denied a WG-6, Explosives Material Handler position because of defamation by the EEO Officer.
In its January 14, 2015 final decision, the Agency dismissed claims a - b and d - e 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 October 7, 2014, which it found to be beyond the 45-day limitation period for making timely EEO contact.
The Agency dismissed claims a - b, c concerning defamation, and d - e, pursuant to 29 C.F.R. § 1614.107(a)(1), for failure to state a claim finding that Complainant was not aggrieved. The Agency found that unless the conduct is severe, a single incident or group of isolated incidents will not be considered discriminatory harassment.
The Agency also dismissed claims b, d and e (harassment claim) on the alternative grounds that the claim had not been raised with an EEO Counselor and that it is not like and related to matters for which Complainant underwent EEO counseling, pursuant to 29 C.F.R. § 1614.107(a)(2).
Finally, the Agency dismissed portion of claim c concerning the EEO Officer violating the Privacy Act on the grounds of failure to state a claim, finding that the Commission has no jurisdiction over enforcing the Privacy Act.
The instant appeal followed.
ANALYSIS AND FINDINGS
Not like or related to a matter that has been brought to EEO Counselor (claims b, d and e)
The Agency found that claim b, d and e should be dismissed because they were not raised before the EEO Counselor. We note, however, that pursuant to 29 C.F.R. § 1614.106(d), a complainant may amend a complaint at any time prior to the conclusion of the investigation to include issues or claims like or related in the formal complaint. While 29 C.F.R. § 1614.107(a)(2) states that the Agency shall dismiss a complaint that raises a matter that has not been brought to the attention of an EEO Counselor and is not like or related to a matter that has been brought to the attention of an EEO Counselor, we find that dismissal pursuant to this regulation does not apply in this case. Instead, a fair reading of the instant record reflects that Complainant alleged that he was being subjected to ongoing harassment by his supervisor, the EEO Officer and other Agency officials. In addition, the formal complaint contains additional examples of alleged harassment by the same supervisor and EEO Officer which are like or related to the instances alleged in the informal complaint, and Complainant is entitled to make such amendments under 29 C.F.R. § 1614.106(d). Therefore, we find that the Agency improperly dismissed claim b, d and e on the grounds that the claims had not been raised with an EEO Counselor and that it is not like or related to the matters for which Complainant underwent EEO counseling.
Failure to state a claim (claims a - e)
EEOC Regulation 29 C.F.R. §1614.107(a)(1) provides for the dismissal of a complaint which fails to state a claim within the meaning of 29 C.F.R. §1614.103. In order to establish standing initially under 29 C.F.R. §1614.103, a complainant must be either an employee or an applicant for employment of the agency against which the allegations of discrimination are raised. In addition, the claims must concern an employment policy or practice which affects the individual in his or her capacity as an employee or applicant for employment. An agency shall accept a complaint from any aggrieved employee or applicant for employment who believes that he or she has been discriminated against by that agency because of race, color, religion, sex, national origin, age or disabling condition. 29 C.F.R. §1614.103; §1614.106(a). The Commission's Federal sector case precedent has long defined an "aggrieved employee" as one who suffers a present harm or loss with respect to a term, condition, or privilege of employment for which there is a remedy. Diaz v. Department of the Air Force, EEOC Request No. 05931049 (April 21, 1994).
The Agency fragmented Complainant's claim of ongoing discriminatory harassment/hostile work environment by dismissing allegations a - b, claim c concerning defamation, and claims d - e for failure to state a claim. A fair reading of the formal complaint reflects that Complainant claimed that he was subjected to a series of related incidents of harassment by the EEO Officer and his supervisor. Moreover, we note in the EEO Counselor's Report, the Counselor stated that Complainant "feels because of the on-going defamation of character by [EEO Officer] taking about him, stating he was trouble it is affecting the way individuals look at him in a professional manner in the workplace."
As a remedy, Complainant requested to be placed in a permanent position in Chemical as a Toxic Material Handler, WG-7 or WG-9, payment for lost hazard pay and lost overtime; and the EEO Officer be counseled on the Privacy Act. Given the breadth of Complainant's claims as noted above, a fair reading of the record reflects that he is alleging a pattern of harassment, and has therefore stated a cognizable claim under the EEOC regulations. See Cervantes v. USPS, EEOC Request No. 05930303 (November 12, 1993).
We do note, however, that to the extent that a portion of claim c may address a violation of the Privacy Act, 5 U.S.C. § 552(g)(1), jurisdiction for such a matter rests exclusively in the United States District Courts. Bucci v. Department of Education, EEOC Request Nos. 05890289, 05890290, 05890291 (April 12, 1989).
Untimely EEO counselor contact (claims a - e)
The Agency also improperly dismissed claims a - e on the grounds of untimely EEO Counselor contact. The record reflects that Complainant initiated EEO Counselor contact on October 7, 2014. The Commission has held that "[b]ecause the incidents that make up a hostile work environment claim collectively constitute one unlawful employment practice, the entire claim is actionable, as long, as at least one incident that is part of the claim occurred within the filing period. This includes incidents that occurred outside the filing period that the [Complainant] knew or should have known were actionable at the time of their occurrence." EEOC Compliance Manual, Section 2, Threshold Issues at 2 - 75 (revised July 21, 2005) (citing National Railroad Passenger Corp. v. Morgan, 536 U.S. 101, 117 (2002)).
The record reflects that various incidents comprising Complainant's hostile work environment claim occurred within the 45-day time period preceding Complainant's October 7, 2014 EEO Counselor contact, as discussed above (i.e. the matters addressed in claim a). Because a fair reading of the record reflects that the matters identified in claims a - e are part of that harassment claim, we find that the Agency improperly dismissed these claims on the grounds of untimely EEO Counselor contact.
We REVERSE the Agency's final decision dismissing claims a - e defined herein as a harassment/hostile work environment claim), and we REMAND this matter to the Agency for further processing in accordance with the ORDER below.
ORDER (E0610)
The Agency is ordered to process claims a - e (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 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.
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 (Z0815)
If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainants Right to File a Civil Action for the specific time limits).
FOR THE COMMISSION:
______________________________ Carlton M. Hadden's signature
Carlton M. Hadden, Director
Office of Federal Operations
January 28, 2016
__________________
Date
------------------------------------------------------------
------------------------------------------------------------
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120 | https://www.eeoc.gov/sites/default/files/decisions/2024_11_15/2024002515.pdf | 2024002515.pdf | PDF | application/pdf | 11,947 | Kristie D .,1 Complainant, v. Carlos Del Toro, Secretary, Department of the Navy, Agency. | December 31, 2020 | Appeal Number: 2023001132
Background:
At the time of events giving rise to this complaint, Complainant worked as a Deputy Assistant Chief of Staff/Deputy Director at the Agency’s Marine Corps
Installations Command, G -7 Modernization and Innovation Directorate in
Washington, D.C.
On December 31, 2020, Complainant filed a formal EEO complaint alleging that the Agency discriminated against her and subjected her to a hostile work environment when:
1) Complainant was subjected to non- sexual harassment on the bases of
sex (female) and disability (physical) when:
a. in April 2019, Complainant relayed concerns regarding a leak and the effects the leak had on her disability (upper respiratory and sinus infection) to her first- line supervisor (Supervisor) in writing,
but no action was taken ,
b. on or around March 12, 2020, Complainant learned that she would be returning to her previous workspace; a HEPA filter would be added; and there was no other space for her to work in. The next day, Complainant learned that a Major (a subordinate), would be moving to the front office, which runs on a different HVAC system ,
c. on or around March 16, 2020, Complainant requested sick leave based on her doctor’s advice, but her request was denied ,
d. in April 2020, Complainant reached out to a Human Resources
(HR) Specialist regarding the Agency’s plan to return back to
work. The HR Specialist essentially threatened that Complainant
could lose her job based on her need for a reasonable accommodation and told her to “think carefully about what needs to be done ,”
e. on or around July 2020, Complainant learned that it took five months for someone to complete the 5100/9 Medical Referral Form for her workplace injury, and
f. on or around August 30, 2020, Complainant was excluded from a meeting with one of her subordinates about a pilot program; and
2) Complainant was subjected to discrimination based on disability when on January 29, 2020, she spoke to the Assistant Chief of Staff regarding a reasonable accommodation request, who referred her to the Administrative and Resources Division, HR and Organizational
Management office without providing any additional assistance, and
Complainant was not provided a reasonable accommodation.
At the conclusion of the investigation, Complainant requested a hearing before an EEOC Administrative Judge (AJ).
On December 1, 2021, the Agency filed a motion to dismiss the complaint for
untimely EEO Counselor contact , arguing that the Complainant's initial EEO
contact, even if considered on October 14, 2020, occurred beyond the 45- day
deadline. The Agency noted that Complainant's last alleged incident of
harassment happened on August 28, 2020, and her final day of her employment was August 29, 2020, both of which were outside the required timeframe for filing. The Agency also argued that Complainant, as a
supervis or, should have been aware of the 45- day rule. Despite Complainant's
opposition, the AJ granted the Agency's Motion to Dismiss on September 30, 2022. The Agency subsequently fully implemented the AJ’s dismissal decision.
Complainant appealed. In the appellate decision, the Commission affirmed the AJ’s findings, noting
that C omplainant initially contacted the EEO Office on October 14, 2020, but
the EEO counselor recorded the contact date as October 29, 2020. Evidence supported the earlier date, making events before August 30, 2020, untimely. Complainant claimed discrimination occurred on August 30, 2020, but
evidence showed the relevant event actually occurred on August 28, 2020, rendering Complainant’s EEO Counselor contact untimely .
Complainant argued her employment with the A gency extended to August 31,
2020, but the evidence, including her own testimony and the official S tandard
Form 50 form, indicated her employment ended on August 29, 2020.
Additionally, the A gency provided sufficient notice of the 45- day deadline for
EEO Counselor contact , and Complainant failed to prove she was unaware of
this deadline or that the A gency misled her.
Complainant also cited the impact of the COVID- 19 pandemic on her ability to
file her complaint, but she did not provide specific evidence or justification for tolling the deadline due to pandemic -related challenges. As a result, the
Commission affirmed the Agency’s final order.
The instant request for reconsideration followed.
CONTENSIONS ON REQUEST
Complainant argues that the Commission made an error in finding that her
initial EEO contact requesting a possible reasonable accommodation in
January 2020, did not constitute timely EEO Counselor contact . Complainant
states that she initiated contact with the EEO office within the required period
and was misled about her rights and the process.
Complainant asserts that this contact should have triggered the EEO process
and the Agency ’s failure to inform her of her rights led to a delayed filing . She
contends that the Commission’s decision overlooked evidence suggesting that
Complainant’s EEO contact was timely and ignored relevant facts that could
toll the filing deadline. Accordingly, Complainant requests that the
Commission reverse the final order.
STANDARD OF REVIEW
EEOC Regulations provide that the Commission may, in its discretion, grant a request to reconsider any previous Commission decision issued pursuant to 29 C.F.R. § 1614.405(a), where the requesting party demonstrates that: (1) the appellate decision involved a clearly erroneous interpretation of material fact or law; or (2) the appellate decision will have a substantial impact on the policies, practices, or operations of the agency. See 29 C.F.R. § 1614.405(c).
Legal Analysis:
the Commission affirmed the AJ’s findings, noting
that C omplainant initially contacted the EEO Office on October 14, 2020, but
the EEO counselor recorded the contact date as October 29, 2020. Evidence supported the earlier date, making events before August 30, 2020, untimely. Complainant claimed discrimination occurred on August 30, 2020, but
evidence showed the relevant event actually occurred on August 28, 2020, rendering Complainant’s EEO Counselor contact untimely .
Complainant argued her employment with the A gency extended to August 31,
2020, but the evidence, including her own testimony and the official S tandard
Form 50 form, indicated her employment ended on August 29, 2020.
Additionally, the A gency provided sufficient notice of the 45- day deadline for
EEO Counselor contact , and Complainant failed to prove she was unaware of
this deadline or that the A gency misled her.
Complainant also cited the impact of the COVID- 19 pandemic on her ability to
file her complaint, but she did not provide specific evidence or justification for tolling the deadline due to pandemic -related challenges. As a result, the
Commission affirmed the Agency’s final order.
The instant request for reconsideration followed.
CONTENSIONS ON REQUEST
Complainant argues that the Commission made an error in finding that her
initial EEO contact requesting a possible reasonable accommodation in
January 2020, did not constitute timely EEO Counselor contact . Complainant
states that she initiated contact with the EEO office within the required period
and was misled about her rights and the process.
Complainant asserts that this contact should have triggered the EEO process
and the Agency ’s failure to inform her of her rights led to a delayed filing . She
contends that the Commission’s decision overlooked evidence suggesting that
Complainant’s EEO contact was timely and ignored relevant facts that could
toll the filing deadline. | Kristie D .,1
Complainant,
v.
Carlos Del Toro,
Secretary,
Department of the Navy,
Agency.
Request No. 2024002515
Appeal No. 2023001132
Agency No. DON -21-67895- 00110
DECISION ON REQUEST FOR RECONSIDERATION
Complainant timely requested that the Equal Employment Opportunity Commission (EEOC or Commission) reconsider its decision in Kristie D. v.
Department of the Navy , EEOC Appeal No. 2023001132 ( Feb. 7, 2024).
ISSUE PRESENTED
Whether Complainant’s request for reconsideration of EEOC Appeal No. 2023001132 meets the criteria detailed in 29 C.F.R. § 1614.405(c).
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Deputy Assistant Chief of Staff/Deputy Director at the Agency’s Marine Corps
Installations Command, G -7 Modernization and Innovation Directorate in
Washington, D.C.
On December 31, 2020, Complainant filed a formal EEO complaint alleging that the Agency discriminated against her and subjected her to a hostile work environment when:
1) Complainant was subjected to non- sexual harassment on the bases of
sex (female) and disability (physical) when:
a. in April 2019, Complainant relayed concerns regarding a leak and the effects the leak had on her disability (upper respiratory and sinus infection) to her first- line supervisor (Supervisor) in writing,
but no action was taken ,
b. on or around March 12, 2020, Complainant learned that she would be returning to her previous workspace; a HEPA filter would be added; and there was no other space for her to work in. The next day, Complainant learned that a Major (a subordinate), would be moving to the front office, which runs on a different HVAC system ,
c. on or around March 16, 2020, Complainant requested sick leave based on her doctor’s advice, but her request was denied ,
d. in April 2020, Complainant reached out to a Human Resources
(HR) Specialist regarding the Agency’s plan to return back to
work. The HR Specialist essentially threatened that Complainant
could lose her job based on her need for a reasonable accommodation and told her to “think carefully about what needs to be done ,”
e. on or around July 2020, Complainant learned that it took five months for someone to complete the 5100/9 Medical Referral Form for her workplace injury, and
f. on or around August 30, 2020, Complainant was excluded from a meeting with one of her subordinates about a pilot program; and
2) Complainant was subjected to discrimination based on disability when on January 29, 2020, she spoke to the Assistant Chief of Staff regarding a reasonable accommodation request, who referred her to the Administrative and Resources Division, HR and Organizational
Management office without providing any additional assistance, and
Complainant was not provided a reasonable accommodation.
At the conclusion of the investigation, Complainant requested a hearing before an EEOC Administrative Judge (AJ).
On December 1, 2021, the Agency filed a motion to dismiss the complaint for
untimely EEO Counselor contact , arguing that the Complainant's initial EEO
contact, even if considered on October 14, 2020, occurred beyond the 45- day
deadline. The Agency noted that Complainant's last alleged incident of
harassment happened on August 28, 2020, and her final day of her employment was August 29, 2020, both of which were outside the required timeframe for filing. The Agency also argued that Complainant, as a
supervis or, should have been aware of the 45- day rule. Despite Complainant's
opposition, the AJ granted the Agency's Motion to Dismiss on September 30, 2022. The Agency subsequently fully implemented the AJ’s dismissal decision.
Complainant appealed. In the appellate decision, the Commission affirmed the AJ’s findings, noting
that C omplainant initially contacted the EEO Office on October 14, 2020, but
the EEO counselor recorded the contact date as October 29, 2020. Evidence supported the earlier date, making events before August 30, 2020, untimely. Complainant claimed discrimination occurred on August 30, 2020, but
evidence showed the relevant event actually occurred on August 28, 2020, rendering Complainant’s EEO Counselor contact untimely .
Complainant argued her employment with the A gency extended to August 31,
2020, but the evidence, including her own testimony and the official S tandard
Form 50 form, indicated her employment ended on August 29, 2020.
Additionally, the A gency provided sufficient notice of the 45- day deadline for
EEO Counselor contact , and Complainant failed to prove she was unaware of
this deadline or that the A gency misled her.
Complainant also cited the impact of the COVID- 19 pandemic on her ability to
file her complaint, but she did not provide specific evidence or justification for tolling the deadline due to pandemic -related challenges. As a result, the
Commission affirmed the Agency’s final order.
The instant request for reconsideration followed.
CONTENSIONS ON REQUEST
Complainant argues that the Commission made an error in finding that her
initial EEO contact requesting a possible reasonable accommodation in
January 2020, did not constitute timely EEO Counselor contact . Complainant
states that she initiated contact with the EEO office within the required period
and was misled about her rights and the process.
Complainant asserts that this contact should have triggered the EEO process
and the Agency ’s failure to inform her of her rights led to a delayed filing . She
contends that the Commission’s decision overlooked evidence suggesting that
Complainant’s EEO contact was timely and ignored relevant facts that could
toll the filing deadline. Accordingly, Complainant requests that the
Commission reverse the final order.
STANDARD OF REVIEW
EEOC Regulations provide that the Commission may, in its discretion, grant a request to reconsider any previous Commission decision issued pursuant to 29 C.F.R. § 1614.405(a), where the requesting party demonstrates that: (1) the appellate decision involved a clearly erroneous interpretation of material fact or law; or (2) the appellate decision will have a substantial impact on the policies, practices, or operations of the agency. See 29 C.F.R. § 1614.405(c).
ANALYSIS
We have reviewed the various arguments raised by Complainant in the instant request for reconsideration. However, we can find no basis to disturb the
Commission's prior decision. Complainant presents arguments which were previously raised and considered or could have been raised during the original
appeal. We acknowledge that Complainant believes that her EEO Counselor
contact was timely and points to her email to the EEO Office in January 2020,
about reasonable accommodation . However, the Commission has found that
a complainant satisfies the requirement of counselor contact by contacting an
agency official “logically connected” with the EEO process, even if that official is not an EEO Counselor, and by exhibiting an intent to begin the EEO process.
See 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. P ostal Serv. , EEOC Request No.
05950933 (July 9, 1996); Jones v. Dep't of the Army , EEOC Request No.
05900435 (Sept. 7, 1990). The record demonstrates that Complainant did
not contact the EEO Office in January 2020, with the intent to initiate the EEO process; rather, Complainant was seeking an accommodation. Complainant did not make EEO Counselor contact with the intent to ini tiate the EEO process
until October 14, 2020.
Furthermore, the Commission has held that 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 she was prevented by circumstances beyond h er control from
contacting the Counselor within the time limits, or for other reason s
considered sufficient by the agency or the Commission. We find, just as the
appellate decision found, that Complainant failed to contact an EEO Counselor within the 45 -day limitation period and she has failed to present any evidence
or arguments to warrant an extension of the time limits for initiating EEO counselor contact.
The Commission emphasizes that a request for reconsideration is not a second appeal. Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD -110), Chap. 9 § VI.A (Aug. 5, 2015); see, e.g., Lopez v.
Dep't of Agric. , EEOC Request No. 0520070736 (Aug. 20, 2007). Rather, a
reconsideration request is an opportunity to demonstrate that the appellate decision involved a clearly erroneous interpretation of material fact or law, or will have a substantial impact on the policies, practices, or operations of the
Agency. Complainant has not done so here. Thus, we conclude that
Complainant has not presented any persuasive evidence to support
reconsideration of the Commission's decision.
CONCLUSION
After reviewing the previous decision and the entire record, the Commission finds that the request fails to meet the criteria of 29 C.F.R. § 1614.405(c), and it is the decision of the Commission to DENY the request. The decision in
EEOC Appeal No. 2023003129 remains the Commission's decision. There is
no further right of administrative appeal on the decision of the Commission on this request.
COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION (P0124)
This decision of the Commission is final, and there is no further right of administrative appeal from the Commission’s decision. You have the right to
file a civil action in an appropriate United States District Court within ninety
(90) calendar days from the date that you receive this decision. If you file
a civil action, you must name as the defendant in the complaint the person who is the official Agency head or department head, identifying that person by their full name and official title.
Failure to do so may result in the dismissal of your case in court. “Agency” or
“department” means the national organization, and not the local office, facility or department in which you wor k.
RIGHT TO REQUEST COUNSEL (Z0815)
If you want to file a civil action 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 o r 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 5, 2024
Date | [
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121 | https://www.eeoc.gov/sites/default/files/migrated_files/decisions/01a32769.txt | 01a32769.txt | TXT | text/plain | 12,617 | Alice Ritchie v. Department of Veterans Affairs 01A32769 June 4, 2004 . Alice Ritchie, Complainant, v. Anthony J. Principi, Secretary, Department of Veterans Affairs, Agency. | June 4, 2004 | Appeal Number: 01A32769
Case Facts:
Complainant filed a timely appeal with this Commission from the final
agency decision dated March 11, 2003, dismissing her complaint of unlawful
employment discrimination in violation of Title VII of the Civil Rights
Act of 1964 (Title VII), as amended, 42 U.S.C. § 2000e et seq.
Believing that she was the victim of discrimination in reprisal for prior
EEO activity, complainant contacted the EEO office on November 13, 2002.
Informal efforts to resolve her concerns were unsuccessful.
On January 8, 2003, complainant filed a formal complaint.
In its final decision dated March 11, 2003, the agency determined that
the instant complaint was comprised of seven claims, that were identified
in the following fashion:
(1) on January 27, 2000, complainant received a memorandum regarding the
decision of the Nurse Professional Standards Board (NPSB) on her appeal
filed in July 1999 of the board action of May 7, 1999;
(2) on or around February 4, 2000, the Chief Nurse refused to promote
complainant to Nurse III because complainant was allegedly untimely with
her appeal to the NPSB;
(3) on August 1, 2001, complainant received a July 11, 2001 letter
regarding the May 2000 to May 2001 proficiency rating period that
erroneously stated that complainant had no non-nursing degrees;
(4) on or around May 8, 2002, the NPSB applied new qualification standards
to complainant's 2002 proficiency review;
(5) on June 5, 2002, complainant received a memorandum indicating that
her proficiency review was done at the Northport VAMC and not by VISN
III as indicated in a January 30, 2002 letter from the Chief Nurse;
(6) on September 18, 2002, complainant received an August 29, 2002 letter
from the Chief Nurse stating that complainant had declined to have her
2002 proficiency reviewed by VISN III and that the Newport NPSB would
not review historical data; and
(7) on December 20, 2002, complainant discovered that her board actions
still displayed erroneous information as stated in her EEO complaint that
is currently at hearing (ORM Case No. 200R-0632-2001103371 or 200H-1719).
The agency dismissed claims (1) through (6) for untimely Counselor
contact. The agency noted that when complainant was asked why she did not
contact the EEO office prior to November 13, 2002, complainant stated that
she discovered missing and altered documents in her Official Personnel
Folder (OPF) after the expiration of the 45-day limitation period.
The agency determined that complainant was aware of the erroneous and/or
missing documents at the time of the events in question. The agency
concluded that complainant attended training which informed her of the
EEO time frames; and that she was a trained EEO Counselor. The agency
dismissed claim (7) for stating same claim as that raised in a prior
complaint. Specifically, the agency noted that complainant addressed
the same issue in Case No. 200H-1719. In addition, the agency found
no continuing violation, determining that none of complainant's claims
(claims (1) through (6)) were timely and that they were not interrelated.
On appeal, complainant through her attorney, states that the
agency misconstrued the matters raised in the instant complaint
when it determined that complainant claimed that she was subjected
to disparate treatment with regard to the processing of NPSB actions.
Complainant's attorney argues that the main issue in the instant complaint
is complainant's claim that on June 5, 2002, she was notified that the
Nursing Board failed to promote her to Nurse Grade III.<1> Regarding
the matters identified by the agency as claims (1) - (7), identified
above, complainant's attorney argues that these matters were intended
to support and not supersede a claim regarding the promotion denial
in June 2002.
With respect to the agency's assertion that complainant was trained as
an EEO Counselor, complainant's attorney states "even if this were true,
she is not an attorney or versed in the legal technicalities underlying
this specialized area of law." Further, complainant's attorney states
that although complainant did not meet the 45-day limitation period,
that her complaint consists of a "series of events which should be viewed
as a continuum and ongoing in nature."
In response, the agency argues that complainant first initiated EEO
Counselor contact on July 8, 2002, regarding not being promoted to Nurse
III grade in May 2002. The agency stated that the EEO Counselor issued
a Notice of Right to File a Discrimination Complaint to complainant and
her representative on August 23, 2002, but that complainant did not file
a formal complaint on the issue of the promotion denial. The agency
argues that complainant, instead, again contacted an EEO Counselor
regarding claims of discrimination on November 13, 2002, alleging various
matters that caused her not to be promoted to the Nurse III grade from
May 1993 to May 29, 2002, and started the EEO counseling process anew.
The record in this case contains a copy of the EEO Counselor's Report
following complainant's initiation of EEO Counselor contact on November
13, 2002. Therein, the EEO Counselor stated that complainant claimed
that she was undergoing EEO counseling about the timeliness of board
actions and the discrepancies in how information is processed and how the
erroneous information has been used to deny [complainant] a promotion
to the Registered Nurse, Level III. The EEO Counselor further stated
that complainant stated that this complaint is not about the failure
to promote because she has raised that issue in prior complaints.
Claims (1) - (6)
Legal Analysis:
EEOC Regulation 29 C.F.R. § 1614.105(a)(1) requires that complaints of
discrimination should be brought to the attention of the Equal Employment
Opportunity Counselor within forty-five (45) days of the date of the
matter alleged to be discriminatory or, in the case of a personnel
action, within forty-five (45) days of the effective date of the action.
The Commission has adopted a "reasonable suspicion" standard (as opposed
to a "supportive facts" standard) to determine when the forty-five (45)
day limitation period is triggered. See Howard v. Department of the Navy,
EEOC Request No. 05970852 (February 11, 1999). Thus, the time limitation
is not triggered until a complainant reasonably suspects discrimination,
but before all the facts that support a charge of discrimination have
become apparent.
EEOC Regulations provide that the agency or the Commission shall extend
the time limits when the individual shows that she was not notified of the
time limits and was not otherwise aware of them, that she did not know
and reasonably should not have known that the discriminatory matter or
personnel action occurred, that despite due diligence she was prevented
by circumstances beyond her control from contacting the Counselor within
the time limits, or for other reasons considered sufficient by the agency
or the Commission.
The Commission notes that complainant initiated EEO Counselor contact on
July 8, 2002, regarding a promotion denial in late May 2002. However, the
record reflects that complainant abandoned this claim by not subsequently
filing a formal complaint on this matter. Complainant again contacted
an EEO Counselor on November 13, 2002, and the EEO Counselor's Report,
as well as the instant formal complaint, do not address the issue of
promotion denial. Rather, the complaint reflects that complainant
identified the matters raised in claims (1) - (7).
Complainant's initial EEO Counselor contact, on November 13, 2002,
is beyond the forty-five (45) day limitation period regarding the
matters identified in claims (1) - (6). The Commission determines that
complainant should have reasonably suspected discrimination well prior
to her initial EEO Counselor contact in November 2002. In addition,
complainant claims that her complaint is part of a continuing violation.
The Commission determines that a continuing violation analysis is not
necessary as there are no viable claims that occurred within forty-five
days of complainant's initial EEO Counselor contact.
Claim (7)
Complainant claimed that on December 20, 2002, she discovered that her
board actions still displayed erroneous information as stated in a prior
EEO complaint that she identified in her formal complaint as Complaint
200#-0632-2001. We find that complainant's claim is an elaboration of
the matter that complainant raised in a prior complaint and was properly
dismissed by the agency pursuant to 29 C.F.R. § 1614.107(a)(1).
Final Decision:
Accordingly, the agency's decision to dismiss complainant's complaint was proper and is hereby AFFIRMED. | Alice Ritchie v. Department of Veterans Affairs
01A32769
June 4, 2004
.
Alice Ritchie,
Complainant,
v.
Anthony J. Principi,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 01A32769
Agency No. 200R-0632-2003100775
DECISION
Complainant filed a timely appeal with this Commission from the final
agency decision dated March 11, 2003, dismissing her complaint of unlawful
employment discrimination in violation of Title VII of the Civil Rights
Act of 1964 (Title VII), as amended, 42 U.S.C. § 2000e et seq.
Believing that she was the victim of discrimination in reprisal for prior
EEO activity, complainant contacted the EEO office on November 13, 2002.
Informal efforts to resolve her concerns were unsuccessful.
On January 8, 2003, complainant filed a formal complaint.
In its final decision dated March 11, 2003, the agency determined that
the instant complaint was comprised of seven claims, that were identified
in the following fashion:
(1) on January 27, 2000, complainant received a memorandum regarding the
decision of the Nurse Professional Standards Board (NPSB) on her appeal
filed in July 1999 of the board action of May 7, 1999;
(2) on or around February 4, 2000, the Chief Nurse refused to promote
complainant to Nurse III because complainant was allegedly untimely with
her appeal to the NPSB;
(3) on August 1, 2001, complainant received a July 11, 2001 letter
regarding the May 2000 to May 2001 proficiency rating period that
erroneously stated that complainant had no non-nursing degrees;
(4) on or around May 8, 2002, the NPSB applied new qualification standards
to complainant's 2002 proficiency review;
(5) on June 5, 2002, complainant received a memorandum indicating that
her proficiency review was done at the Northport VAMC and not by VISN
III as indicated in a January 30, 2002 letter from the Chief Nurse;
(6) on September 18, 2002, complainant received an August 29, 2002 letter
from the Chief Nurse stating that complainant had declined to have her
2002 proficiency reviewed by VISN III and that the Newport NPSB would
not review historical data; and
(7) on December 20, 2002, complainant discovered that her board actions
still displayed erroneous information as stated in her EEO complaint that
is currently at hearing (ORM Case No. 200R-0632-2001103371 or 200H-1719).
The agency dismissed claims (1) through (6) for untimely Counselor
contact. The agency noted that when complainant was asked why she did not
contact the EEO office prior to November 13, 2002, complainant stated that
she discovered missing and altered documents in her Official Personnel
Folder (OPF) after the expiration of the 45-day limitation period.
The agency determined that complainant was aware of the erroneous and/or
missing documents at the time of the events in question. The agency
concluded that complainant attended training which informed her of the
EEO time frames; and that she was a trained EEO Counselor. The agency
dismissed claim (7) for stating same claim as that raised in a prior
complaint. Specifically, the agency noted that complainant addressed
the same issue in Case No. 200H-1719. In addition, the agency found
no continuing violation, determining that none of complainant's claims
(claims (1) through (6)) were timely and that they were not interrelated.
On appeal, complainant through her attorney, states that the
agency misconstrued the matters raised in the instant complaint
when it determined that complainant claimed that she was subjected
to disparate treatment with regard to the processing of NPSB actions.
Complainant's attorney argues that the main issue in the instant complaint
is complainant's claim that on June 5, 2002, she was notified that the
Nursing Board failed to promote her to Nurse Grade III.<1> Regarding
the matters identified by the agency as claims (1) - (7), identified
above, complainant's attorney argues that these matters were intended
to support and not supersede a claim regarding the promotion denial
in June 2002.
With respect to the agency's assertion that complainant was trained as
an EEO Counselor, complainant's attorney states "even if this were true,
she is not an attorney or versed in the legal technicalities underlying
this specialized area of law." Further, complainant's attorney states
that although complainant did not meet the 45-day limitation period,
that her complaint consists of a "series of events which should be viewed
as a continuum and ongoing in nature."
In response, the agency argues that complainant first initiated EEO
Counselor contact on July 8, 2002, regarding not being promoted to Nurse
III grade in May 2002. The agency stated that the EEO Counselor issued
a Notice of Right to File a Discrimination Complaint to complainant and
her representative on August 23, 2002, but that complainant did not file
a formal complaint on the issue of the promotion denial. The agency
argues that complainant, instead, again contacted an EEO Counselor
regarding claims of discrimination on November 13, 2002, alleging various
matters that caused her not to be promoted to the Nurse III grade from
May 1993 to May 29, 2002, and started the EEO counseling process anew.
The record in this case contains a copy of the EEO Counselor's Report
following complainant's initiation of EEO Counselor contact on November
13, 2002. Therein, the EEO Counselor stated that complainant claimed
that she was undergoing EEO counseling about the timeliness of board
actions and the discrepancies in how information is processed and how the
erroneous information has been used to deny [complainant] a promotion
to the Registered Nurse, Level III. The EEO Counselor further stated
that complainant stated that this complaint is not about the failure
to promote because she has raised that issue in prior complaints.
Claims (1) - (6)
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 notes that complainant initiated EEO Counselor contact on
July 8, 2002, regarding a promotion denial in late May 2002. However, the
record reflects that complainant abandoned this claim by not subsequently
filing a formal complaint on this matter. Complainant again contacted
an EEO Counselor on November 13, 2002, and the EEO Counselor's Report,
as well as the instant formal complaint, do not address the issue of
promotion denial. Rather, the complaint reflects that complainant
identified the matters raised in claims (1) - (7).
Complainant's initial EEO Counselor contact, on November 13, 2002,
is beyond the forty-five (45) day limitation period regarding the
matters identified in claims (1) - (6). The Commission determines that
complainant should have reasonably suspected discrimination well prior
to her initial EEO Counselor contact in November 2002. In addition,
complainant claims that her complaint is part of a continuing violation.
The Commission determines that a continuing violation analysis is not
necessary as there are no viable claims that occurred within forty-five
days of complainant's initial EEO Counselor contact.
Claim (7)
Complainant claimed that on December 20, 2002, she discovered that her
board actions still displayed erroneous information as stated in a prior
EEO complaint that she identified in her formal complaint as Complaint
200#-0632-2001. We find that complainant's claim is an elaboration of
the matter that complainant raised in a prior complaint and was properly
dismissed by the agency pursuant to 29 C.F.R. § 1614.107(a)(1).
Accordingly, the agency's decision to dismiss complainant's 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
June 4, 2004
__________________
Date
1While complainant's attorney refers to
a promotion denial on June 5, 2002, the Commission notes that other
evidence of record reflects that the denial occurred in late May 2002.
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"29 C.F.R. § 1614.604",
"29 C.F.R. § 1614.604(c)",
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122 | https://www.eeoc.gov/sites/default/files/migrated_files/decisions/01a43804.txt | 01a43804.txt | TXT | text/plain | 12,206 | Frankie D. Laster v. Department of the Army 01A43804 September 13, 2004 . Frankie D. Laster, Complainant, v. R.L. Brownlee, Acting Secretary, Department of the Army, Agency. | September 13, 2004 | Appeal Number: 01A43804
Case Facts:
Complainant filed a timely appeal with this Commission from the final
agency decision dated April 6, 2004, dismissing his complaint of
unlawful employment discrimination in violation of Section 501 of the
Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. §
791 et seq. and the Age Discrimination in Employment Act of 1967 (ADEA),
as amended, 29 U.S.C. § 621 et seq.
On March 24, 2004, complainant filed a formal complaint, alleging that he
was subjected to discrimination on the bases of disability and age when:
(1) on November 20, 2003, he was not selected for the position of
Park Ranger, GS-0025-09 at Enid Lake Field Office (Announcement
No. SWGR03291202); and
(2) on November 20, 2003, he was not selected for the position of Park
Ranger (GIS), GS-0025-07/09 at Grenada Lake Field Office (Announcement
No. SWGR03405956).
In its April 6, 2004 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 agency determined that complainant did
not initiate pre-complaint counseling concerning his claims. The agency
noted that prior to the filing of the formal complaint, complainant
through his representative sent email correspondence to the EEO office.
The agency determined, however, that complainant's intentions were
unclear despite the EEO office's attempts to ascertain his claims.
The agency further determined that complainant's email correspondence to
the EEO office was the equivalent of some type of strategy session between
complainant and his representative. Furthermore, the agency determined
that complainant, through his representative, did not intend to initiate
EEO counseling until January 21, 2004, when his representative sent a
letter to the agency requesting EEO counseling, which was well beyond
the 45-day limitation period.
On appeal, complainant through his representative states that he did
initiate contact with an EEO Counselor in a timely manner. Complainant's
representative further states that complainant initiated EEO contact on
December 1 and 10, 2003, when he sent e-mail correspondences to the EEO
office requesting EEO counseling concerning his non-selections.
Legal Analysis:
EEOC Regulation 29 C.F.R. § 1614.105(a)(1) requires that complaints of
discrimination should be brought to the attention of the Equal Employment
Opportunity Counselor within forty-five (45) days of the date of the
matter alleged to be discriminatory or, in the case of a personnel
action, within forty-five (45) days of the effective date of the action.
The Commission has adopted a "reasonable suspicion" standard (as opposed
to a "supportive facts" standard) to determine when the forty-five (45)
day limitation period is triggered. See Howard v. Department of the Navy,
EEOC Request No. 05970852 (February 11, 1999). Thus, the time limitation
is not triggered until a complainant reasonably suspects discrimination,
but before all the facts that support a charge of discrimination have
become apparent.
EEOC Regulations provide that the agency or the Commission shall extend
the time limits when the individual shows that he was not notified of the
time limits and was not otherwise aware of them, that he did not know
and reasonably should not have known that the discriminatory matter or
personnel action occurred, that despite due diligence he was prevented
by circumstances beyond his control from contacting the Counselor within
the time limits, or for other reasons considered sufficient by the agency
or the Commission.
The Commission determines that the agency improperly dismissed
complainant's complaint for untimely EEO Counselor contact. The
Commission finds that complainant initiated EEO Counselor contact
on December 1, 2003. The record contains a copy of an e-mail dated
December 1, 2003, from complainant to an EEO Specialist stating that
he is requesting EEO counseling. The record also contains a copy of
an e-mail dated December 5, 2003, from the EEO Specialist to an union
representative questioning why she needed to attend a meeting with
complainant at his request; and stating that if complainant wished to
file an EEO complaint, that he needed to contact her and that she would
assign an EEO Counselor to him. Additionally, the record contains a
copy of an e-mail dated December 10, 2003, from complainant to the EEO
Specialist stating that he is requesting EEO counseling on December 19,
2003 with his union representative. A review of the above referenced
email correspondence reflects that complainant initiated EEO Counselor
contact in December 2003, which constituted timely EEO contact for
the alleged discriminatory incidents identified in claims (1) and (2),
which purportedly occurred on November 20, 2003.
Moreover, as noted above, the agency indicated in its final decision
that complainant did not initiate pre-complaint counseling on the
matters identified in the instant complaint. We disagree with this
determination. The record in this case contains various pre-complaint
documents regarding complainant's non-selection for the subject position,
including an EEO contact sheet identifying the non-selections; an EEO
Counselor's Report regarding the non-selections; and a Notice of Right
to File a Discrimination Complaint dated March 16, 2004, informing
complainant that a final counseling interview was held in the matter
relating to non-selections at the Enid Lake Field Office and the Grenada
Lake Field Office. | Frankie D. Laster v. Department of the Army
01A43804
September 13, 2004
.
Frankie D. Laster,
Complainant,
v.
R.L. Brownlee,
Acting Secretary,
Department of the Army,
Agency.
Appeal No. 01A43804
Agency No. ARCEVICK04FEB0021
DECISION
Complainant filed a timely appeal with this Commission from the final
agency decision dated April 6, 2004, dismissing his complaint of
unlawful employment discrimination in violation of Section 501 of the
Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. §
791 et seq. and the Age Discrimination in Employment Act of 1967 (ADEA),
as amended, 29 U.S.C. § 621 et seq.
On March 24, 2004, complainant filed a formal complaint, alleging that he
was subjected to discrimination on the bases of disability and age when:
(1) on November 20, 2003, he was not selected for the position of
Park Ranger, GS-0025-09 at Enid Lake Field Office (Announcement
No. SWGR03291202); and
(2) on November 20, 2003, he was not selected for the position of Park
Ranger (GIS), GS-0025-07/09 at Grenada Lake Field Office (Announcement
No. SWGR03405956).
In its April 6, 2004 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 agency determined that complainant did
not initiate pre-complaint counseling concerning his claims. The agency
noted that prior to the filing of the formal complaint, complainant
through his representative sent email correspondence to the EEO office.
The agency determined, however, that complainant's intentions were
unclear despite the EEO office's attempts to ascertain his claims.
The agency further determined that complainant's email correspondence to
the EEO office was the equivalent of some type of strategy session between
complainant and his representative. Furthermore, the agency determined
that complainant, through his representative, did not intend to initiate
EEO counseling until January 21, 2004, when his representative sent a
letter to the agency requesting EEO counseling, which was well beyond
the 45-day limitation period.
On appeal, complainant through his representative states that he did
initiate contact with an EEO Counselor in a timely manner. Complainant's
representative further states that complainant initiated EEO contact on
December 1 and 10, 2003, when he sent e-mail correspondences to the EEO
office requesting EEO counseling concerning his non-selections.
EEOC Regulation 29 C.F.R. § 1614.105(a)(1) requires that complaints of
discrimination should be brought to the attention of the Equal Employment
Opportunity Counselor within forty-five (45) days of the date of the
matter alleged to be discriminatory or, in the case of a personnel
action, within forty-five (45) days of the effective date of the action.
The Commission has adopted a "reasonable suspicion" standard (as opposed
to a "supportive facts" standard) to determine when the forty-five (45)
day limitation period is triggered. See Howard v. Department of the Navy,
EEOC Request No. 05970852 (February 11, 1999). Thus, the time limitation
is not triggered until a complainant reasonably suspects discrimination,
but before all the facts that support a charge of discrimination have
become apparent.
EEOC Regulations provide that the agency or the Commission shall extend
the time limits when the individual shows that he was not notified of the
time limits and was not otherwise aware of them, that he did not know
and reasonably should not have known that the discriminatory matter or
personnel action occurred, that despite due diligence he was prevented
by circumstances beyond his control from contacting the Counselor within
the time limits, or for other reasons considered sufficient by the agency
or the Commission.
The Commission determines that the agency improperly dismissed
complainant's complaint for untimely EEO Counselor contact. The
Commission finds that complainant initiated EEO Counselor contact
on December 1, 2003. The record contains a copy of an e-mail dated
December 1, 2003, from complainant to an EEO Specialist stating that
he is requesting EEO counseling. The record also contains a copy of
an e-mail dated December 5, 2003, from the EEO Specialist to an union
representative questioning why she needed to attend a meeting with
complainant at his request; and stating that if complainant wished to
file an EEO complaint, that he needed to contact her and that she would
assign an EEO Counselor to him. Additionally, the record contains a
copy of an e-mail dated December 10, 2003, from complainant to the EEO
Specialist stating that he is requesting EEO counseling on December 19,
2003 with his union representative. A review of the above referenced
email correspondence reflects that complainant initiated EEO Counselor
contact in December 2003, which constituted timely EEO contact for
the alleged discriminatory incidents identified in claims (1) and (2),
which purportedly occurred on November 20, 2003.
Moreover, as noted above, the agency indicated in its final decision
that complainant did not initiate pre-complaint counseling on the
matters identified in the instant complaint. We disagree with this
determination. The record in this case contains various pre-complaint
documents regarding complainant's non-selection for the subject position,
including an EEO contact sheet identifying the non-selections; an EEO
Counselor's Report regarding the non-selections; and a Notice of Right
to File a Discrimination Complaint dated March 16, 2004, informing
complainant that a final counseling interview was held in the matter
relating to non-selections at the Enid Lake Field Office and the Grenada
Lake Field Office.
Accordingly, the agency's decision dismissing complainant's complaint
is REVERSED and the complaint is REMANDED to the agency for further
processing in accordance with the ORDER below and applicable regulations.
ORDER (E0900)
The agency is ordered to process the remanded claims in accordance with
29 C.F.R. § 1614.108. The agency shall acknowledge to the complainant
that it has received the remanded claims within thirty (30) calendar
days of the date this decision becomes final. The agency shall issue
to complainant a copy of the investigative file and also shall notify
complainant of the appropriate rights within one hundred fifty (150)
calendar days of the date this decision becomes final, unless the matter
is otherwise resolved prior to that time. If the complainant requests a
final decision without a hearing, the agency shall issue a final decision
within sixty (60) days of receipt of complainant's request.
A copy of the agency's letter of acknowledgment to complainant and a
copy of the notice that transmits the investigative file and notice of
rights must be sent to the Compliance Officer as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0501)
Compliance with the Commission's corrective action is mandatory.
The agency shall submit its compliance report within thirty (30)
calendar days of the completion of all ordered corrective action. The
report shall be submitted to the Compliance Officer, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. The agency's report must contain supporting
documentation, and the agency must send a copy of all submissions to
the complainant. If the agency does not comply with the Commission's
order, the complainant may petition the Commission for enforcement
of the order. 29 C.F.R. § 1614.503(a). The complainant also has the
right to file a civil action to enforce compliance with the Commission's
order prior to or following an administrative petition for enforcement.
See 29 C.F.R. §§ 1614.407, 1614.408, and 29 C.F.R. § 1614.503(g).
Alternatively, the complainant has the right to file a civil action on
the underlying complaint in accordance with the paragraph below entitled
"Right to File A Civil Action." 29 C.F.R. §§ 1614.407 and 1614.408.
A civil action for enforcement or a civil action on the underlying
complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c)
(1994 & Supp. IV 1999). If the complainant files a civil action, the
administrative processing of the complaint, including any petition for
enforcement, will be terminated. See 29 C.F.R. § 1614.409.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
The Commission may, in its discretion, reconsider the decision in this
case if the complainant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. The appellate decision involved a clearly erroneous interpretation
of material fact or law; or
2. The appellate decision will have a substantial impact on the policies,
practices, or operations of the agency.
Requests to reconsider, with supporting statement or brief, must be filed
with the Office of Federal Operations (OFO) within thirty (30) calendar
days of receipt of this decision or within twenty (20) calendar days of
receipt of another party's timely request for reconsideration. See 29
C.F.R. § 1614.405; Equal Employment Opportunity Management Directive for
29 C.F.R. Part 1614 (EEO MD-110), 9-18 (November 9, 1999). All requests
and arguments must be submitted to the Director, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. In the absence of a legible postmark, the
request to reconsider shall be deemed timely filed if it is received by
mail within five days of the expiration of the applicable filing period.
See 29 C.F.R. § 1614.604. The request or opposition must also include
proof of service on the other party.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely, unless extenuating circumstances
prevented the timely filing of the request. Any supporting documentation
must be submitted with your request for reconsideration. The Commission
will consider requests for reconsideration filed after the deadline only
in very limited circumstances. See 29 C.F.R. § 1614.604(c).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (R0900)
This is a decision requiring the agency to continue its administrative
processing of your complaint. However, if you wish to file a civil
action, you have the right to file such action in an appropriate United
States District Court within ninety (90) calendar days from the date
that you receive this decision. In the alternative, you may file a
civil action after one hundred and eighty (180) calendar days of the date
you filed your complaint with the agency, or filed your appeal with the
Commission. If you file a civil action, you must name as the defendant in
the complaint the person who is the official agency head or department
head, identifying that person by his or her full name and official title.
Failure to do so may result in the dismissal of your case in court.
"Agency" or "department" means the national organization, and not the
local office, facility or department in which you work. Filing a civil
action will terminate the administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z1199)
If you decide to file a civil action, and if you do not have or cannot
afford the services of an attorney, you may request that the Court appoint
an attorney to represent you and that the Court permit you to file the
action without payment of fees, costs, or other security. See Title VII
of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq.;
the Rehabilitation Act of 1973, as amended, 29 U.S.C. §§ 791, 794(c).
The grant or denial of the request is within the sole discretion of
the Court. Filing a request for an attorney does not extend your time
in which to file a civil action. Both the request and the civil action
must be filed within the time limits as stated in the paragraph above
("Right to File A Civil Action").
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
September 13, 2004
__________________
Date
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123 | https://www.eeoc.gov/sites/default/files/migrated_files/decisions/01a60149.txt | 01a60149.txt | TXT | text/plain | 11,358 | James R. Conner v. Department of the Army 01A60149 May 17, 2006 . James R. Conner, Complainant, v. Dr. Francis J. Harvey, Secretary, Department of the Army, Agency. | May 17, 2006 | Appeal Number: 01A60149
Complaint Allegations:
In his complaint, complainant alleged that he was subjected to discrimination on the basis of disability (unspecified) when, on April 21, 2005, he was notified of his non-selection for a GS-13 Rend Lake Project Manager position. Complainant asserted that his non-selection was the result of the St. Louis District's failure to implement a viable disability program as mandated by ER 690-1-306, Executive Order 13078, Executive Order 13163, and the Rehabilitation Act of 1973, which prohibited him from being prepared for career advancement. In September 7, 2005 final decision, the agency dismissed the complaint in its entirety for untimely EEO counselor contact pursuant to EEOC regulation 29 C.F.R. § 1614.107(a)(2). The agency stated that complainant was aware of his non-selection for the position in question on April 21, 2005, as evidenced by the fact that he met with the EEO Officer on that date to express his concerns about not being selected. The agency noted that complainant also contacted its EEO Officer on May 2, 2005, via e-mail, and requested a copy of the St. Louis District's affirmative action plan for the hiring, placement and advancement of persons with disabilities. The agency, however, determined that complainant's actual contact to request EEO counseling was on July 14, 2005, more than the requisite 45 days from when he learned of his non-selection, and therefore dismissed his complaint on timeliness grounds. On appeal, complainant alleges that although he was aware of his non-selection on April 21, 2005, he did not develop a reasonable suspicion that his non-selection resulted from discrimination until after he received copies of the agency's affirmative action plan for disabled employees on June 17, 2005. He argues that his July 14, 2005 EEO counselor contact was therefore timely.
Case Facts:
As an initial matter, the Commission hereby rescinds it previous decision
in Appeal No. 01A60149, which was inadvertently issued on March 10,
2006, and replaces it with the instant decision nunc pro tunc.
At the time of the events at issue, complainant was a Supervisory Natural
Resource Specialist with the Army Corps of Engineers. Complainant filed
a timely appeal with this Commission from the agency's decision dated
September 7, 2005, dismissing his complaint of unlawful employment
discrimination alleging violations of Section 501 of the Rehabilitation
Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq.
In his complaint, complainant alleged that he was subjected to
discrimination on the basis of disability (unspecified) when, on April
21, 2005, he was notified of his non-selection for a GS-13 Rend Lake
Project Manager position. Complainant asserted that his non-selection
was the result of the St. Louis District's failure to implement a
viable disability program as mandated by ER 690-1-306, Executive Order
13078, Executive Order 13163, and the Rehabilitation Act of 1973, which
prohibited him from being prepared for career advancement.
In September 7, 2005 final decision, the agency dismissed the
complaint in its entirety for untimely EEO counselor contact pursuant
to
Legal Analysis:
the Commission hereby rescinds it previous decision
in Appeal No. 01A60149, which was inadvertently issued on March 10,
2006, and replaces it with the instant decision nunc pro tunc.
At the time of the events at issue, complainant was a Supervisory Natural
Resource Specialist with the Army Corps of Engineers. Complainant filed
a timely appeal with this Commission from the agency's decision dated
September 7, 2005, dismissing his complaint of unlawful employment
discrimination alleging violations of Section 501 of the Rehabilitation
Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq.
In his complaint, complainant alleged that he was subjected to
discrimination on the basis of disability (unspecified) when, on April
21, 2005, he was notified of his non-selection for a GS-13 Rend Lake
Project Manager position. Complainant asserted that his non-selection
was the result of the St. Louis District's failure to implement a
viable disability program as mandated by ER 690-1-306, Executive Order
13078, Executive Order 13163, and the Rehabilitation Act of 1973, which
prohibited him from being prepared for career advancement.
In September 7, 2005 final decision, the agency dismissed the
complaint in its entirety for untimely EEO counselor contact pursuant
to EEOC regulation 29 C.F.R. § 1614.107(a)(2). The agency stated that
complainant was aware of his non-selection for the position in question on
April 21, 2005, as evidenced by the fact that he met with the EEO Officer
on that date to express his concerns about not being selected. The agency
noted that complainant also contacted its EEO Officer on May 2, 2005,
via e-mail, and requested a copy of the St. Louis District's affirmative
action plan for the hiring, placement and advancement of persons with
disabilities. The agency, however, determined that complainant's
actual contact to request EEO counseling was on July 14, 2005, more
than the requisite 45 days from when he learned of his non-selection,
and therefore dismissed his complaint on timeliness grounds.
On appeal, complainant alleges that although he was aware of his
non-selection on April 21, 2005, he did not develop a reasonable
suspicion that his non-selection resulted from discrimination until
after he received copies of the agency's affirmative action plan for
disabled employees on June 17, 2005. He argues that his July 14,
2005 EEO counselor contact was therefore timely.
ANALYSIS AND FINDINGS
EEOC regulation 29 C.F.R. § 1614.105(a)(1) requires that complaints of
discrimination must 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.
As an initial matter, we note that the record is unclear as to the
actual date of initial EEO counselor contact in this case. The agency's
final action sets July 14, 2005, as the date of complainant's initial
counselor contact. However, it is also undisputed that complainant
met with the agency's EEO Officer on April 21, 2005, immediately after he
learned of his non-selection. The Commission has held that a complainant
may satisfy the criterion of EEO counselor contact by initiating contact
with any agency official logically connected to the EEO process, even
if not an EEO counselor, and by exhibiting an intent to begin the EEO
process. See EEOC's Management Directive 110, 2-1, note 1 (November 9,
1999); Allen v. United States Postal Service, EEOC Request No. 05950933
(July 8, 1996). In the instant matter, while the April 21 contact was
made with an official logically connected to the EEO process, we find
that evidence of record does not support a finding that complainant
exhibited the requisite intent to begin the EEO process at that time.
An affidavit submitted on appeal by the EEO Officer states, I advised
[complainant] of his right to file an EEO complaint at that time
during the April 21, 2005 meeting, but [complainant] declined to file
a complaint. Moreover, in his November 29, 2005 statement submitted
on appeal, complainant himself stated that at the time of the meeting
[April 21, 2005], I had no reason to file a complaint and had given no
inclination of filing a complaint. The purpose of the meeting was for
me to gather information on the selection process, because I intended
to discuss my non-selection with the District Engineer.
Therefore, we conclude that the agency's final decision was correct in
identifying July 14, 2005, as the date complainant initiated contact with
an EEO counselor with the intent to begin the EEO complaint process.<1>
Complainant also concedes this point in his statement on appeal and
acknowledges that it was beyond the forty-five (45) day limitation
period from when he learned of his non-selection. Complainant argues
that until he concluded that the agency was not implementing its own
affirmative action program, he did not have reasonable suspicion that
his non-selection constituted prohibited discrimination.
The Commission, however, concludes that complainant reasonably should have
suspected that his non-selection was discriminatory at the time he learned
it had occurred. Filing time limitations for this type of discrete
employment action generally run from the time the action occurred.
See National Railroad Passenger Corp. v. Morgan, 122 S.Ct. 2061 (June
10, 2002). Complainant does not adequately explain how discovering that
the agency was allegedly not following the provisions of its affirmative
action plan for employees with disabilities in general provided him with
reasonable suspicion concerning his own non-selection. In any event, at
best, whatever he learned from reading the agency's affirmative action
plan on June 17, would have constituted supportive facts regarding his
allegation of discrimination in his non-selection. As noted above,
the Commission has long held that the forty-five day limitation period
begins when a complainant has reasonable suspicion, not when he develops
supportive facts for his claim. Therefore, we concur with the agency's
determination that complainant failed to exercise due diligence in
pursuing the EEO process regarding his non-selection, and his complaint
was properly dismissed on the grounds of untimely EEO counselor contact.
Final Decision:
Accordingly, the agency's final decision dismissing complainant's complaint is AFFIRMED. | James R. Conner v. Department of the Army
01A60149
May 17, 2006
.
James R. Conner,
Complainant,
v.
Dr. Francis J. Harvey,
Secretary,
Department of the Army,
Agency.
Appeal No. 01A60149
Agency No. ARCESTL05APR08073
DECISION
As an initial matter, the Commission hereby rescinds it previous decision
in Appeal No. 01A60149, which was inadvertently issued on March 10,
2006, and replaces it with the instant decision nunc pro tunc.
At the time of the events at issue, complainant was a Supervisory Natural
Resource Specialist with the Army Corps of Engineers. Complainant filed
a timely appeal with this Commission from the agency's decision dated
September 7, 2005, dismissing his complaint of unlawful employment
discrimination alleging violations of Section 501 of the Rehabilitation
Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq.
In his complaint, complainant alleged that he was subjected to
discrimination on the basis of disability (unspecified) when, on April
21, 2005, he was notified of his non-selection for a GS-13 Rend Lake
Project Manager position. Complainant asserted that his non-selection
was the result of the St. Louis District's failure to implement a
viable disability program as mandated by ER 690-1-306, Executive Order
13078, Executive Order 13163, and the Rehabilitation Act of 1973, which
prohibited him from being prepared for career advancement.
In September 7, 2005 final decision, the agency dismissed the
complaint in its entirety for untimely EEO counselor contact pursuant
to EEOC regulation 29 C.F.R. § 1614.107(a)(2). The agency stated that
complainant was aware of his non-selection for the position in question on
April 21, 2005, as evidenced by the fact that he met with the EEO Officer
on that date to express his concerns about not being selected. The agency
noted that complainant also contacted its EEO Officer on May 2, 2005,
via e-mail, and requested a copy of the St. Louis District's affirmative
action plan for the hiring, placement and advancement of persons with
disabilities. The agency, however, determined that complainant's
actual contact to request EEO counseling was on July 14, 2005, more
than the requisite 45 days from when he learned of his non-selection,
and therefore dismissed his complaint on timeliness grounds.
On appeal, complainant alleges that although he was aware of his
non-selection on April 21, 2005, he did not develop a reasonable
suspicion that his non-selection resulted from discrimination until
after he received copies of the agency's affirmative action plan for
disabled employees on June 17, 2005. He argues that his July 14,
2005 EEO counselor contact was therefore timely.
ANALYSIS AND FINDINGS
EEOC regulation 29 C.F.R. § 1614.105(a)(1) requires that complaints of
discrimination must 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.
As an initial matter, we note that the record is unclear as to the
actual date of initial EEO counselor contact in this case. The agency's
final action sets July 14, 2005, as the date of complainant's initial
counselor contact. However, it is also undisputed that complainant
met with the agency's EEO Officer on April 21, 2005, immediately after he
learned of his non-selection. The Commission has held that a complainant
may satisfy the criterion of EEO counselor contact by initiating contact
with any agency official logically connected to the EEO process, even
if not an EEO counselor, and by exhibiting an intent to begin the EEO
process. See EEOC's Management Directive 110, 2-1, note 1 (November 9,
1999); Allen v. United States Postal Service, EEOC Request No. 05950933
(July 8, 1996). In the instant matter, while the April 21 contact was
made with an official logically connected to the EEO process, we find
that evidence of record does not support a finding that complainant
exhibited the requisite intent to begin the EEO process at that time.
An affidavit submitted on appeal by the EEO Officer states, I advised
[complainant] of his right to file an EEO complaint at that time
during the April 21, 2005 meeting, but [complainant] declined to file
a complaint. Moreover, in his November 29, 2005 statement submitted
on appeal, complainant himself stated that at the time of the meeting
[April 21, 2005], I had no reason to file a complaint and had given no
inclination of filing a complaint. The purpose of the meeting was for
me to gather information on the selection process, because I intended
to discuss my non-selection with the District Engineer.
Therefore, we conclude that the agency's final decision was correct in
identifying July 14, 2005, as the date complainant initiated contact with
an EEO counselor with the intent to begin the EEO complaint process.<1>
Complainant also concedes this point in his statement on appeal and
acknowledges that it was beyond the forty-five (45) day limitation
period from when he learned of his non-selection. Complainant argues
that until he concluded that the agency was not implementing its own
affirmative action program, he did not have reasonable suspicion that
his non-selection constituted prohibited discrimination.
The Commission, however, concludes that complainant reasonably should have
suspected that his non-selection was discriminatory at the time he learned
it had occurred. Filing time limitations for this type of discrete
employment action generally run from the time the action occurred.
See National Railroad Passenger Corp. v. Morgan, 122 S.Ct. 2061 (June
10, 2002). Complainant does not adequately explain how discovering that
the agency was allegedly not following the provisions of its affirmative
action plan for employees with disabilities in general provided him with
reasonable suspicion concerning his own non-selection. In any event, at
best, whatever he learned from reading the agency's affirmative action
plan on June 17, would have constituted supportive facts regarding his
allegation of discrimination in his non-selection. As noted above,
the Commission has long held that the forty-five day limitation period
begins when a complainant has reasonable suspicion, not when he develops
supportive facts for his claim. Therefore, we concur with the agency's
determination that complainant failed to exercise due diligence in
pursuing the EEO process regarding his non-selection, and his complaint
was properly dismissed on the grounds of untimely 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
May 17, 2006
__________________
Date
1 We also note that the EEO Counselor's Report prepared in this
case identifies May 2, 2005, the date of initial contact with EEO
official. However, the record establishes that the only relevant
event that occurred on this date was that complainant emailed the
EEO Officer a request for a copy of agency's affirmative action
plan for disabled employees. Therefore, we determine that the EEO
counselor was in error when this date was entered on the report.
| [
"Howard v. Department of the Navy, EEOC Request No. 05970852 (February 11, 1999)",
"Allen v. United States Postal Service, EEOC Request No. 05950933 (July 8, 1996)",
"122 S.Ct. 2061",
"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. § 161... | [
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124 | https://www.eeoc.gov/sites/default/files/migrated_files/decisions/01993847.txt | 01993847.txt | TXT | text/plain | 10,719 | Monteria A. Peoples v. USPS 01993847 February 2, 2001 . Monteria A. Peoples, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency. | February 2, 2001 | Appeal Number: 01993847
Case Facts:
On April 9, 1999, complainant filed a timely appeal with this Commission
from a final agency decision (FAD) 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.<1> The Commission
accepts the appeal in accordance with 64 Fed. Reg. 37,644, 37,659 (1999)
(to be codified at 29 C.F.R. § 1614.405).
The record indicates that complainant contacted the EEO office on
January 18, 1999, regarding claims of discrimination based on race, sex,
and reprisal. Informal efforts to resolve complainant's complaint were
unsuccessful. Complainant filed a formal complaint on February 19, 1999.
The agency framed the complainant's claims as follows:
In November 1996, June 1997, and June 1998, a supervisor told complainant
that another employee told the supervisor to lower complainant's
evaluations for any EAS-16 position;
On April 26, 1998, the Acting Manager of Distribution Operations and
another employee had a private meeting to conspire together in developing
a story line that initiated a false EEO;
On April 28, 1998, complainant was verbally harassed by his Tour Manager;
On July 10, 1998, complainant was issued a Letter of Warning for Improper
Conduct; and,
During July 1998, complainant learned that his PS Form 3972 Absence
Record contained false data, causing him not to be recommended for the
Associate Supervisor Program.
The agency issued a decision, dated March 31, 1999, dismissing the
complaint for untimely EEO Counselor contact. Specifically the agency
indicated that complainant contacted the EEO Counselor on January 18,
1999, which is at least five months after the most recent alleged
incident, and beyond the forty-five day time limitation.
On appeal, complainant contends that the agency improperly dismissed
his complaint for untimely EEO Counselor contact. Complainant argues
he called an EEO Counselor on July 10, 1998, rather than on January 18,
1999, as determined by the agency. According to complainant, he called an
EEO Counselor on July 10, 1998, in order to put an EEO on a co-worker,
and followed the Counselor's instructions to first contact the union
representative. Complainant states that some time after November
1998, he learned that the union representative did not do an EEO on
the co-worker. Complainant states that he waited until after the union
had a letter of warning removed in January 1999, and then contacted the
EEO Counselor again to go forward with the EEO against the co-worker.
Complainant argues that he has never filed an EEO case before and simply
followed the advice given by the EEO Counselor in July 1998.
The agency does not respond to complainant's arguments on appeal, because
it claims that complainant failed to notify the agency that he was filing
an appeal of the final decision. The agency instead requests that the
Commission disregard any submission of an appeal by the complainant.
Legal Analysis:
The Commission
accepts the appeal in accordance with 64 Fed. Reg. 37,644, 37,659 (1999)
(to be codified at 29 C.F.R. § 1614.405).
The record indicates that complainant contacted the EEO office on
January 18, 1999, regarding claims of discrimination based on race, sex,
and reprisal. Informal efforts to resolve complainant's complaint were
unsuccessful. Complainant filed a formal complaint on February 19, 1999.
The agency framed the complainant's claims as follows:
In November 1996, June 1997, and June 1998, a supervisor told complainant
that another employee told the supervisor to lower complainant's
evaluations for any EAS-16 position;
On April 26, 1998, the Acting Manager of Distribution Operations and
another employee had a private meeting to conspire together in developing
a story line that initiated a false EEO;
On April 28, 1998, complainant was verbally harassed by his Tour Manager;
On July 10, 1998, complainant was issued a Letter of Warning for Improper
Conduct; and,
During July 1998, complainant learned that his PS Form 3972 Absence
Record contained false data, causing him not to be recommended for the
Associate Supervisor Program.
The agency issued a decision, dated March 31, 1999, dismissing the
complaint for untimely EEO Counselor contact. Specifically the agency
indicated that complainant contacted the EEO Counselor on January 18,
1999, which is at least five months after the most recent alleged
incident, and beyond the forty-five day time limitation.
On appeal, complainant contends that the agency improperly dismissed
his complaint for untimely EEO Counselor contact. Complainant argues
he called an EEO Counselor on July 10, 1998, rather than on January 18,
1999, as determined by the agency. According to complainant, he called an
EEO Counselor on July 10, 1998, in order to put an EEO on a co-worker,
and followed the Counselor's instructions to first contact the union
representative. Complainant states that some time after November
1998, he learned that the union representative did not do an EEO on
the co-worker. Complainant states that he waited until after the union
had a letter of warning removed in January 1999, and then contacted the
EEO Counselor again to go forward with the EEO against the co-worker.
Complainant argues that he has never filed an EEO case before and simply
followed the advice given by the EEO Counselor in July 1998.
The agency does not respond to complainant's arguments on appeal, because
it claims that complainant failed to notify the agency that he was filing
an appeal of the final decision. The agency instead requests that the
Commission disregard any submission of an appeal by the complainant.
EEOC Regulation 29 C.F.R. § 1614.105(a)(1) requires that complaints of
discrimination should be brought to the attention of the Equal Employment
Opportunity Counselor within forty-five (45) days of the date of the
matter alleged to be discriminatory or, in the case of a personnel
action, within forty-five (45) days of the effective date of the action.
The Commission has adopted a "reasonable suspicion" standard (as opposed
to a "supportive facts" standard) to determine when the forty-five (45)
day limitation period is triggered. See Howard v. Department of the Navy,
EEOC Request No. 05970852 (February 11, 1999). Thus, the time limitation
is not triggered until a complainant reasonably suspects discrimination,
but before all the facts that support a charge of discrimination have
become apparent.
EEOC Regulations provide that the agency or the Commission shall extend
the time limits when the individual shows that she was not notified of the
time limits and was not otherwise aware of them, that she did not know
and reasonably should not have known that the discriminatory matter or
personnel action occurred, that despite due diligence she was prevented
by circumstances beyond her control from contacting the Counselor within
the time limits, or for other reasons considered sufficient by the agency
or the Commission.
In the instant case, complainant contends that he contacted the EEO
Counselor in a timely manner, on July 10, 1998. The Counselor's Report,
however, indicates that complainant's initial contact was on January
18, 1999. The Commission finds that complainant has failed to show that
he initiated contact with an intent to pursue the EEO process prior
to January 18, 1999. The Commission notes that although complainant
purportedly contacted the EEO office in July 1998, he did not follow
up and learn that no action had been taken until approximately four
months later. Then, complainant waited an additional two months before
going back to the Counselor.
Complainant also argues that he was unfamiliar with the EEO process.
It is well settled that constructive knowledge of the time limit for
contacting an EEO Counselor will be imputed to a complainant when the
agency has fulfilled its statutory duty of posting notices informing
employees of their EEO rights and obligations. See Thompson v. Department
of the Army, EEOC Request No. 05910474(September 12, 1991). Here, the
record contains an affidavit from the Manager, Distribution Operations
who attests that an EEO poster with the 45-day time limit was displayed
on the employee bulletin board prior to 1996 and during April and July
1998. A Human Resources Associate also attests to an EEO poster, with
the time limit, posted in both the workroom floor and front lobby area.
We determine that this is sufficient to impute constructive knowledge
of the 45-day time to complainant. See Santiago v. United States Postal
Service, EEOC Request No. 05950272 (July 6, 1995).
Given the circumstances of this case, we find that complainant knew or
should have known of the 45-day limit for contacting an EEO Counselor and
yet he waited until after pursuing the matter through the union to seek
counseling.
Final Decision:
Accordingly, the agency's decision to dismiss the complaint is AFFIRMED. | Monteria A. Peoples v. USPS
01993847
February 2, 2001
.
Monteria A. Peoples,
Complainant,
v.
William J. Henderson,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01993847
Agency No. 1D-234-0031-99
DECISION
On April 9, 1999, complainant filed a timely appeal with this Commission
from a final agency decision (FAD) 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.<1> The Commission
accepts the appeal in accordance with 64 Fed. Reg. 37,644, 37,659 (1999)
(to be codified at 29 C.F.R. § 1614.405).
The record indicates that complainant contacted the EEO office on
January 18, 1999, regarding claims of discrimination based on race, sex,
and reprisal. Informal efforts to resolve complainant's complaint were
unsuccessful. Complainant filed a formal complaint on February 19, 1999.
The agency framed the complainant's claims as follows:
In November 1996, June 1997, and June 1998, a supervisor told complainant
that another employee told the supervisor to lower complainant's
evaluations for any EAS-16 position;
On April 26, 1998, the Acting Manager of Distribution Operations and
another employee had a private meeting to conspire together in developing
a story line that initiated a false EEO;
On April 28, 1998, complainant was verbally harassed by his Tour Manager;
On July 10, 1998, complainant was issued a Letter of Warning for Improper
Conduct; and,
During July 1998, complainant learned that his PS Form 3972 Absence
Record contained false data, causing him not to be recommended for the
Associate Supervisor Program.
The agency issued a decision, dated March 31, 1999, dismissing the
complaint for untimely EEO Counselor contact. Specifically the agency
indicated that complainant contacted the EEO Counselor on January 18,
1999, which is at least five months after the most recent alleged
incident, and beyond the forty-five day time limitation.
On appeal, complainant contends that the agency improperly dismissed
his complaint for untimely EEO Counselor contact. Complainant argues
he called an EEO Counselor on July 10, 1998, rather than on January 18,
1999, as determined by the agency. According to complainant, he called an
EEO Counselor on July 10, 1998, in order to put an EEO on a co-worker,
and followed the Counselor's instructions to first contact the union
representative. Complainant states that some time after November
1998, he learned that the union representative did not do an EEO on
the co-worker. Complainant states that he waited until after the union
had a letter of warning removed in January 1999, and then contacted the
EEO Counselor again to go forward with the EEO against the co-worker.
Complainant argues that he has never filed an EEO case before and simply
followed the advice given by the EEO Counselor in July 1998.
The agency does not respond to complainant's arguments on appeal, because
it claims that complainant failed to notify the agency that he was filing
an appeal of the final decision. The agency instead requests that the
Commission disregard any submission of an appeal by the complainant.
EEOC Regulation 29 C.F.R. § 1614.105(a)(1) requires that complaints of
discrimination should be brought to the attention of the Equal Employment
Opportunity Counselor within forty-five (45) days of the date of the
matter alleged to be discriminatory or, in the case of a personnel
action, within forty-five (45) days of the effective date of the action.
The Commission has adopted a "reasonable suspicion" standard (as opposed
to a "supportive facts" standard) to determine when the forty-five (45)
day limitation period is triggered. See Howard v. Department of the Navy,
EEOC Request No. 05970852 (February 11, 1999). Thus, the time limitation
is not triggered until a complainant reasonably suspects discrimination,
but before all the facts that support a charge of discrimination have
become apparent.
EEOC Regulations provide that the agency or the Commission shall extend
the time limits when the individual shows that she was not notified of the
time limits and was not otherwise aware of them, that she did not know
and reasonably should not have known that the discriminatory matter or
personnel action occurred, that despite due diligence she was prevented
by circumstances beyond her control from contacting the Counselor within
the time limits, or for other reasons considered sufficient by the agency
or the Commission.
In the instant case, complainant contends that he contacted the EEO
Counselor in a timely manner, on July 10, 1998. The Counselor's Report,
however, indicates that complainant's initial contact was on January
18, 1999. The Commission finds that complainant has failed to show that
he initiated contact with an intent to pursue the EEO process prior
to January 18, 1999. The Commission notes that although complainant
purportedly contacted the EEO office in July 1998, he did not follow
up and learn that no action had been taken until approximately four
months later. Then, complainant waited an additional two months before
going back to the Counselor.
Complainant also argues that he was unfamiliar with the EEO process.
It is well settled that constructive knowledge of the time limit for
contacting an EEO Counselor will be imputed to a complainant when the
agency has fulfilled its statutory duty of posting notices informing
employees of their EEO rights and obligations. See Thompson v. Department
of the Army, EEOC Request No. 05910474(September 12, 1991). Here, the
record contains an affidavit from the Manager, Distribution Operations
who attests that an EEO poster with the 45-day time limit was displayed
on the employee bulletin board prior to 1996 and during April and July
1998. A Human Resources Associate also attests to an EEO poster, with
the time limit, posted in both the workroom floor and front lobby area.
We determine that this is sufficient to impute constructive knowledge
of the 45-day time to complainant. See Santiago v. United States Postal
Service, EEOC Request No. 05950272 (July 6, 1995).
Given the circumstances of this case, we find that complainant knew or
should have known of the 45-day limit for contacting an EEO Counselor and
yet he waited until after pursuing the matter through the union to seek
counseling. Accordingly, the agency's decision to dismiss the complaint
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
February 2, 2001
__________________
Date
1On November 9, 1999, revised regulations governing the EEOC's federal
sector complaint process went into effect. These regulations apply to all
federal sector EEO complaints pending at any stage in the administrative
process. Consequently, the Commission will apply the revised regulations
found at 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.
| [
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125 | https://www.eeoc.gov/sites/default/files/migrated_files/decisions/01a03069.txt | 01a03069.txt | TXT | text/plain | 11,578 | 01 . John Surdyk, Complainant, v. Gregory R. Dahlberg, Acting Secretary, Department of the Air Force, Agency. | February 17, 2000 | Appeal Number: 01A03069
Case Facts:
Complainant filed a timely appeal from the agency's final decision of
February 17, 2000 which dismissed complainant's complaint for untimely EEO
Counselor contact pursuant to 29 C.F.R. § 1614.107 (a)(2). The appeal is
timely filed (see 29 C.F.R. § 1614.402(a)) and is accepted in accordance
with 29 C.F.R. § 1614.405.
The record shows that on May 3, 1999, complainant received a letter
of reprimand (the reprimand) for making a derogatory statement about
a co-worker. In the reprimand, complainant was informed that he had the
right to file a grievance regarding the reprimand. Complainant was also
informed that if he wished to allege illegal discrimination regarding
the reprimand, he should contact an EEO Counselor within the regulatory
timeframes.
On July 21, 1999, complainant filed a grievance regarding the reprimand
which, in part, raised his claims of illegal discrimination. The
grievance was denied in a decision dated August 13, 1999. In the
grievance decision, complainant was informed that the EEO matters raised
in the grievance had a separate review process which was excluded from
the grievance procedure. Complainant was further informed that if he
wished to file an EEO complaint he should contact the EEO office at the
McAlester facility.
On August 25, 1999, complainant contacted the EEO office at McAlester
and on January 10, 2000 filed a formal EEO complaint. On February 17,
2000, the agency issued its final agency decision (FAD) which dismissed
complainant's complaint on the grounds that complainant's EEO contact
of August 25, 1999 was untimely.
On appeal, complainant explains that shortly after receiving the May 3,
1999 reprimand, he timely contacted the agency's Rock Island EEO office.
According to complainant, he spoke with an agency official (the Official)
whom he identifies by name and telephone number. Complainant states
that the Official told him over the telephone that she would mail him
information regarding the counseling process. Complainant states that
he received no information after a week, called the Official back, and
then received the information from the Official. Complainant includes
with his appeal copies of the information received from the Official.
Complainant goes on to explain that he then called the Official back
and informed her that he wanted to file an EEO complaint. According to
complainant, the Official told him that he could not file a grievance and
an EEO complaint and advised him that EEO complaints took a long time to
resolve. Complainant states that, based on the Official's advice and for
other reasons, he decided to file a grievance. Complainant argues that
he only discovered later that the Official's advice and information was
wrong and that he could have filed both a grievance and an EEO complaint
after he received the reprimand.
In rebuttal to complainant's appeal, the agency states that only
after the grievance was denied on August 13, 1999, did (complainant)
attempt to enter the EEO process. The agency submits no evidence to
rebut complainant's specific account, discussed above, of his prior EEO
contact with the Rock Island EEO office.
Legal Analysis:
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 45 days of the effective date of the action.
The agency or the Commission shall extend the 45-day time limitation
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. 29 C.F.R. § 1614.105(a)(2).
After carefully reviewing the record, we find that the agency's
final decision should be reversed and that complainant's formal EEO
complainant should be accepted for investigation. As discussed above,
complainant submitted a very fact-specific account of his initial contact
with the Rock Island EEO office that occurred prior to the filing of his
grievance. Complainant also argued that he was misguided by a Rock Island
EEO official regarding the grievance and EEO procedures. The agency, on
the other hand, submits nothing to rebut complainant's account of his
efforts to file an EEO complaint. | John Surdyk v. Department of the Army
01A03069
03-28-01
.
John Surdyk,
Complainant,
v.
Gregory R. Dahlberg,
Acting Secretary,
Department of the Air Force,
Agency.
Appeal No. 01A03069
Agency No. BHBTF09909J0130
DECISION
Complainant filed a timely appeal from the agency's final decision of
February 17, 2000 which dismissed complainant's complaint for untimely EEO
Counselor contact pursuant to 29 C.F.R. § 1614.107 (a)(2). The appeal is
timely filed (see 29 C.F.R. § 1614.402(a)) and is accepted in accordance
with 29 C.F.R. § 1614.405.
The record shows that on May 3, 1999, complainant received a letter
of reprimand (the reprimand) for making a derogatory statement about
a co-worker. In the reprimand, complainant was informed that he had the
right to file a grievance regarding the reprimand. Complainant was also
informed that if he wished to allege illegal discrimination regarding
the reprimand, he should contact an EEO Counselor within the regulatory
timeframes.
On July 21, 1999, complainant filed a grievance regarding the reprimand
which, in part, raised his claims of illegal discrimination. The
grievance was denied in a decision dated August 13, 1999. In the
grievance decision, complainant was informed that the EEO matters raised
in the grievance had a separate review process which was excluded from
the grievance procedure. Complainant was further informed that if he
wished to file an EEO complaint he should contact the EEO office at the
McAlester facility.
On August 25, 1999, complainant contacted the EEO office at McAlester
and on January 10, 2000 filed a formal EEO complaint. On February 17,
2000, the agency issued its final agency decision (FAD) which dismissed
complainant's complaint on the grounds that complainant's EEO contact
of August 25, 1999 was untimely.
On appeal, complainant explains that shortly after receiving the May 3,
1999 reprimand, he timely contacted the agency's Rock Island EEO office.
According to complainant, he spoke with an agency official (the Official)
whom he identifies by name and telephone number. Complainant states
that the Official told him over the telephone that she would mail him
information regarding the counseling process. Complainant states that
he received no information after a week, called the Official back, and
then received the information from the Official. Complainant includes
with his appeal copies of the information received from the Official.
Complainant goes on to explain that he then called the Official back
and informed her that he wanted to file an EEO complaint. According to
complainant, the Official told him that he could not file a grievance and
an EEO complaint and advised him that EEO complaints took a long time to
resolve. Complainant states that, based on the Official's advice and for
other reasons, he decided to file a grievance. Complainant argues that
he only discovered later that the Official's advice and information was
wrong and that he could have filed both a grievance and an EEO complaint
after he received the reprimand.
In rebuttal to complainant's appeal, the agency states that only
after the grievance was denied on August 13, 1999, did (complainant)
attempt to enter the EEO process. The agency submits no evidence to
rebut complainant's specific account, discussed above, of his prior EEO
contact with the Rock Island EEO office.
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 45 days of the effective date of the action.
The agency or the Commission shall extend the 45-day time limitation
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. 29 C.F.R. § 1614.105(a)(2).
After carefully reviewing the record, we find that the agency's
final decision should be reversed and that complainant's formal EEO
complainant should be accepted for investigation. As discussed above,
complainant submitted a very fact-specific account of his initial contact
with the Rock Island EEO office that occurred prior to the filing of his
grievance. Complainant also argued that he was misguided by a Rock Island
EEO official regarding the grievance and EEO procedures. The agency, on
the other hand, submits nothing to rebut complainant's account of his
efforts to file an EEO complaint. Accordingly, based on the evidence
submitted by the parties on appeal, and considering the record as a whole,
we find that the agency improperly dismissed complainant's complaint
for failure to contact an EEO Counselor in a timely manner. Therefore,
the FAD is REVERSED and complainant's complaint is REMANDED for further
processing in accordance with the Order below.
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 an
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
__03-28-01________________
Date
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126 | https://www.eeoc.gov/sites/default/files/migrated_files/decisions/2019000047.pdf | 2019000047.pdf | PDF | application/pdf | 13,551 | Vince D .,1 Complainant, v. Kirstjen M. Nielsen, Secretary, Department of Homeland Security (Customs and Border Protection), Agency. | September 18, 2018 | Appeal Number: 2019000047
Background:
At the time of events giving rise to this complaint, Complainant was a former Agency employee, having worked for about nine months in 2003 as a CBP Customs Inspector (“CI”) at the Blaine,
Washington Port of Entry. On December 22, 2017, Complainant contacted an EEO counselor and on March 1, 2018, filed a formal complaint alleging that the Agency subjected him to discrimination on the bases of race (Black), color (Black), and reprisal for prior protected EEO activity when:
1. On or about July 25, 2008, the Office of the Inspector General (“OIG”) failed to refer
his reprisal allegations for EEO counseling in order to interfere with and chill his
rights, and to stop his use of EEO process,
2. In or about November 2008, the Port Director (“PD”) failed to refer Complainant's
reprisal allegations for EEO counseling in order to interfere with and chill his rights,
and to stop his use of EEO process ,
3. 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 and chill his rights, and to stop his use
of EEO pro cess,
4. 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 hi s rights, and to stop his use of EEO process ,
5. On or a bout April 12, 2009 and February 23, 2010, IA misrepresented the fact that it
would conduct a fair and impartial investigation into Complainant's charges,
6. On or about June 5, 2009, Agency Attorneys 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 ,
7. On or about June 5, 2009, Agency Attorneys misrepresented and concealed their own
misconduct during official matters,
8. 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,
9. On or about September 3, 2009, the Agency’s Privacy and Diversity Office (“PDO”)
improperly dismissed his EEO complaint ( Agency Case No. HSCBP076832009) in
order to stop his use of EEO process, and to protect high- ranking Agency employees,
10. On or about December 4, 2009 and November 18, 2013, the PDO improperly
dismissed his EEO complaint ( Agency Case No. HS10CBP001022) in order to stop
Complainant from pursuing a civil action in federal district court, and to protect high ranking Agency personnel from charges of interference and corruption,
11. On or about May 18, 2010, the PDO improperly dismissed his EEO complaint
(Agency Case No. HS10CBP005043200117) in order to stop him from pursuing a
civil action in federal district court, and to protect high ranking Agency personnel from charges of interf erence and corruption,
12. On or about November 30, 2017, the Acting Director for the PDO failed to refer hi s
allegations of reprisal for EEO counseling, in order protect high- ranking Agency
personnel from charges, to include Agency interference.
The Agency dismissed Claims 1 through 11, pursuant to 29 C.F.R. § 1614.107(a)(2 ), for
untimely EEO contact. Alternately, the Agency dismissed Claims 3, 4, 5, and 8 for failure to state a claim under § 1614.107(a)(1), finding them to be attempts at an impermissible co llateral
attack on another proceeding. The Agency dismissed Claims 9, 10, 11, and 12 pursuant to § 1614.107(a)(8) alleging dissatisfaction with the processing of a previously filed complaint. The instant appeal followed. By way of additional background, the record shows that in 2003, Complainant had filed an
earlier EEO complaint alleging discrimination based on race/color and retaliation when he was
terminated during his probationary period. On March 21, 2005, a fter holding a five-day hearing
on the matt er, an EEOC Administrative Judge (“AJ”) concluded that Complainant was unable to
establish discrimination as alleged. Rather than appeal to the Commission, Complainant opted to
pursue the matter in the United States District Court for the Western District of Washington (“District Court”).
On September 8, 2006, the District Court dismissed Complainant’s action “with prejudice,” and without a hearing, in favor of the Agency, and on September 28, 2006, it denied Complainant’s request for reconsideration. Ca se No. C05- 1308RSM (W.D. Wash.) . The Ninth Circuit Court of
Appeals (“Court of Appeals”) dismissed Complainant’s complaint “with prejudice” after he
voluntarily withdrew his case on April 4, 2007. We take this opportunity to note that dismissal
“with prej udice” bars “relitigation of any subsequent action involving the same parties and
claims . 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 testimony 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 th is
other case, Complainant believed he could show 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 2003 complaint.
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.
2 Complainant also filed a claim with the Merit Systems Protection Board (“MSPB”) under
MSPB Appeal No. SE344304005811 (Dec. 19, 2003) (dismissed in favor of Agency).
Complainant then filed a motion to vacate based on the “newly discovered evidence” with the
District Court, which was denied on January 20, 2010. The Court of Appeals affirmed the
District Court’s denial on April 15, 2010 (9th Cir. Ct. App. No. 10- 35098 (2010)).
Complainant also filed a civil action 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 c ounselor 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) M otion 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 contacted an EEO c ounselor and later filed his formal
complaint in the instant complaint , resulting in the Agency’s dismissal decision currently on
appeal .
Legal Analysis:
the Commission, Complainant opted to
pursue the matter in the United States District Court for the Western District of Washington (“District Court”).
On September 8, 2006, the District Court dismissed Complainant’s action “with prejudice,” and without a hearing, in favor of the Agency, and on September 28, 2006, it denied Complainant’s request for reconsideration. Ca se No. C05- 1308RSM (W.D. Wash.) . The Ninth Circuit Court of
Appeals (“Court of Appeals”) dismissed Complainant’s complaint “with prejudice” after he
voluntarily withdrew his case on April 4, 2007. We take this opportunity to note that dismissal
“with prej udice” bars “relitigation of any subsequent action involving the same parties and
claims . 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 testimony 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 th is
other case, Complainant believed he could show 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 2003 complaint.
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.
2 Complainant also filed a claim with the Merit Systems Protection Board (“MSPB”) under
MSPB Appeal No. SE344304005811 (Dec. 19, 2003) (dismissed in favor of Agency).
Complainant then filed a motion to vacate based on the “newly discovered evidence” with the
District Court, which was denied on January 20, 2010. The Court of Appeals affirmed the
District Court’s denial on April 15, 2010 (9th Cir. Ct. App. No. 10- 35098 (2010)).
Complainant also filed a civil action 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 c ounselor 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) M otion 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 contacted an EEO c ounselor and later filed his formal
complaint in the instant complaint , resulting in the Agency’s dismissal decision currently on
appeal .
ANALYSIS AND FINDINGS
We find the record and our regulations support the Agency’s stated grounds for dismissal. Claims 1 - 11 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 12 wa s 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. H aving
thoroughly reviewed the record and history of Complainant’s allegations in both this and other proceedings and venues, it is clear Complainant is attempting to revive litigation that has long
since been decided. | Vince D .,1
Complainant,
v.
Kirstjen M. Nielsen,
Secretary,
Department of Homeland Security
(Customs and Border Protection),
Agency.
Appeal No. 2019000047
Agency No. HSCBP006802018
DECISION
Complainant timely appealed with the Equal Employment Opportunity Commission ( “EEOC ” or
“Commission ”) from the Agency's September 18, 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
At the time of events giving rise to this complaint, Complainant was a former Agency employee, having worked for about nine months in 2003 as a CBP Customs Inspector (“CI”) at the Blaine,
Washington Port of Entry. On December 22, 2017, Complainant contacted an EEO counselor and on March 1, 2018, filed a formal complaint alleging that the Agency subjected him to discrimination on the bases of race (Black), color (Black), and reprisal for prior protected EEO activity when:
1. On or about July 25, 2008, the Office of the Inspector General (“OIG”) failed to refer
his reprisal allegations for EEO counseling in order to interfere with and chill his
rights, and to stop his use of EEO process,
2. In or about November 2008, the Port Director (“PD”) failed to refer Complainant's
reprisal allegations for EEO counseling in order to interfere with and chill his rights,
and to stop his use of EEO process ,
3. 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 and chill his rights, and to stop his use
of EEO pro cess,
4. 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 hi s rights, and to stop his use of EEO process ,
5. On or a bout April 12, 2009 and February 23, 2010, IA misrepresented the fact that it
would conduct a fair and impartial investigation into Complainant's charges,
6. On or about June 5, 2009, Agency Attorneys 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 ,
7. On or about June 5, 2009, Agency Attorneys misrepresented and concealed their own
misconduct during official matters,
8. 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,
9. On or about September 3, 2009, the Agency’s Privacy and Diversity Office (“PDO”)
improperly dismissed his EEO complaint ( Agency Case No. HSCBP076832009) in
order to stop his use of EEO process, and to protect high- ranking Agency employees,
10. On or about December 4, 2009 and November 18, 2013, the PDO improperly
dismissed his EEO complaint ( Agency Case No. HS10CBP001022) in order to stop
Complainant from pursuing a civil action in federal district court, and to protect high ranking Agency personnel from charges of interference and corruption,
11. On or about May 18, 2010, the PDO improperly dismissed his EEO complaint
(Agency Case No. HS10CBP005043200117) in order to stop him from pursuing a
civil action in federal district court, and to protect high ranking Agency personnel from charges of interf erence and corruption,
12. On or about November 30, 2017, the Acting Director for the PDO failed to refer hi s
allegations of reprisal for EEO counseling, in order protect high- ranking Agency
personnel from charges, to include Agency interference.
The Agency dismissed Claims 1 through 11, pursuant to 29 C.F.R. § 1614.107(a)(2 ), for
untimely EEO contact. Alternately, the Agency dismissed Claims 3, 4, 5, and 8 for failure to state a claim under § 1614.107(a)(1), finding them to be attempts at an impermissible co llateral
attack on another proceeding. The Agency dismissed Claims 9, 10, 11, and 12 pursuant to § 1614.107(a)(8) alleging dissatisfaction with the processing of a previously filed complaint. The instant appeal followed. By way of additional background, the record shows that in 2003, Complainant had filed an
earlier EEO complaint alleging discrimination based on race/color and retaliation when he was
terminated during his probationary period. On March 21, 2005, a fter holding a five-day hearing
on the matt er, an EEOC Administrative Judge (“AJ”) concluded that Complainant was unable to
establish discrimination as alleged. Rather than appeal to the Commission, Complainant opted to
pursue the matter in the United States District Court for the Western District of Washington (“District Court”).
On September 8, 2006, the District Court dismissed Complainant’s action “with prejudice,” and without a hearing, in favor of the Agency, and on September 28, 2006, it denied Complainant’s request for reconsideration. Ca se No. C05- 1308RSM (W.D. Wash.) . The Ninth Circuit Court of
Appeals (“Court of Appeals”) dismissed Complainant’s complaint “with prejudice” after he
voluntarily withdrew his case on April 4, 2007. We take this opportunity to note that dismissal
“with prej udice” bars “relitigation of any subsequent action involving the same parties and
claims . 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 testimony 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 th is
other case, Complainant believed he could show 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 2003 complaint.
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.
2 Complainant also filed a claim with the Merit Systems Protection Board (“MSPB”) under
MSPB Appeal No. SE344304005811 (Dec. 19, 2003) (dismissed in favor of Agency).
Complainant then filed a motion to vacate based on the “newly discovered evidence” with the
District Court, which was denied on January 20, 2010. The Court of Appeals affirmed the
District Court’s denial on April 15, 2010 (9th Cir. Ct. App. No. 10- 35098 (2010)).
Complainant also filed a civil action 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 c ounselor 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) M otion 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 contacted an EEO c ounselor and later filed his formal
complaint in the instant complaint , resulting in the Agency’s dismissal decision currently on
appeal .
ANALYSIS AND FINDINGS
We find the record and our regulations support the Agency’s stated grounds for dismissal. Claims 1 - 11 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 12 wa s 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. H aving
thoroughly reviewed the record and history of Complainant’s allegations in both this 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) cal endar 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 ma il
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 defenda nt 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 RE QUEST 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
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127 | https://www.eeoc.gov/sites/default/files/migrated_files/decisions/01985502.r.txt | 01985502.r.txt | TXT | text/plain | 14,916 | July 7, 1998 | Appeal Number: 01985502
Complaint Allegations:
In his complaint, complainant alleged that he was subjected to discrimination on the bases of race (Afro-American), sex (male), color (black), age (47), and in retaliation for prior EEO activity when: On May 30, 1997, complainant was not recommended for the position of Systems Analyst, EAS-19.
Case Facts:
On July 7, 1998, complainant filed a timely appeal with this Commission
from a final agency decision (FAD) received by him on June 18, 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. and the Age Discrimination in Employment Act of
1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. <1> In his complaint,
complainant alleged that he was subjected to discrimination on the
bases of race (Afro-American), sex (male), color (black), age (47),
and in retaliation for prior EEO activity when:
On May 30, 1997, complainant was not recommended for the position of
Systems Analyst, EAS-19.
The agency dismissed complainant's complaint on the grounds of untimely
EEO Counselor contact. In its final decision, the agency noted that
complainant pursued the agency's May 30, 1997 decision through a
Merit System Protection Board (MSPB) appeal. The agency claimed that
complainant was notified from MSPB that his appeal was dismissed due to
lack of jurisdiction on November 3, 1997, and that the decision became
final on December 8, 1997. The agency claimed that since complainant did
not contact the Tennessee EEO Office until March 4, 1998, his contact
was beyond the forty-five day limitation period and, therefore, his
complaint was untimely.
On appeal, complainant claims that he did meet the forty-five day contact
requirement and that therefore his complaint should not be dismissed.
Complainant concedes that his MSPB appeal was dismissed due to lack of
jurisdiction on November 3, 1997, and that the decision became final on
December 8, 1997. However, complainant states that the MSPB decision
did not inform him that he had forty-five days to seek EEO Counseling.
Complainant states that on December 24, 1997, he received a letter from
the EEO Compliance and Appeals Coordinator, Southeast/Southwest Area
Office, stating that he should contact the agency's headquarters office
in order to initiate EEO counseling which complainant claims he did
by sending a certified letter on January 24, 1997, to the headquarters
EEO office. Complainant then states that he received an acknowledgment
letter from the headquarters EEO office which stated that complainant's
request for counseling would be processed by the Southeast/Southwest
Area Office. When complainant did not hear from the Southeast/Southwest
Office, he went to see a counselor in person on March 4, 1998.
The record shows that complainant filed an MSPB appeal regarding the
agency's decision not to promote him on July 3, 1997. According to
the record, the MSPB issued a decision on November 3, 1997, which
dismissed the appeal based on jurisdictional grounds. The record also
contains a December 24, 1997 letter to complainant from the agency's
headquarters EEO Office which informed complainant of his right to
contact an EEO Counselor within forty-five days of receipt of the
notice from the Board. In addition, the record contains a January 27,
1998 letter from complainant to the agency's headquarters EEO Office
in which complainant requested EEO Counseling. Also included in the
record is a February 6, 1998 letter from the headquarters EEO Office
to complainant which informed complainant that his complaint would be
forwarded to the Southeast/Southwest EEO Office and would be processed
there.
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.
According to 64 Fed. Reg. 37,644 37,659 (1999) (to be codified and
hereinafter referred to as 29 C.F.R. § 1614.302(b)), if a person files
a mixed case appeal to the MSPB alleging discrimination, and the MSPB
dismisses the appeal for lack of jurisdiction, the agency must notify
the aggrieved person of his right to contact an EEO Counselor within
forty-five days of receipt of the notice and to file an EEO complaint.
In addition, this regulation provides that the date of the initial EEO
Counselor contact will be deemed to be the date on which the MSPB appeal
was filed 29 C.F.R. § 1614.302(b).
In the present case, the alleged discriminatory act occurred on May
30, 1997, when complainant was not recommended for the Systems Analyst
position. Therefore, in order to be within the forty-five day limitation
period, complainant would have had to contact an EEO Counselor by July 14,
1997. Since complainant originally filed a mixed case appeal which was
dismissed by the MSPB for lack of jurisdiction, the date of the initial
EEO Counselor contact is the date on which the MSPB appeal was filed.
The record shows that complainant filed an MSPB appeal on July 3, 1997;
therefore, his initial EEO Counselor contact was timely.
Although complainant filed an MSPB appeal, his appeal was dismissed by
the Board for jurisdictional reasons on November 3, 1997. According to
29 C.F.R. § 1614.302(b), when the MSPB dismisses a mixed case appeal on
jurisdictional grounds, the agency is required to promptly notify the
individual in writing of the right to contact an EEO Counselor within
forty-five days of receipt of this notice and to file an EEO complaint.
In the present case, the record reveals that the agency sent complainant
the requisite notice of his right to contact an EEO Counselor on December
24, 1997. In addition, the record reveals that complainant requested
EEO counseling from the headquarters EEO office on January 27, 1998.
Thus, complainant timely contacted an EEO Counselor within forty-five
days of receipt of the requisite notice from the agency.
Final Decision:
Accordingly, the agency's decision to dismiss complainant's complaint was improper, and is hereby REVERSED. | Quincy Turner, )
Complainant, )
)
v. ) Appeal No. 01985502
William J. Henderson, ) Agency No. 1H-374-0046-98
Postmaster General, )
United States Postal Service, )
Agency. )
____________________________________)
DECISION
On July 7, 1998, complainant filed a timely appeal with this Commission
from a final agency decision (FAD) received by him on June 18, 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. and the Age Discrimination in Employment Act of
1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. <1> In his complaint,
complainant alleged that he was subjected to discrimination on the
bases of race (Afro-American), sex (male), color (black), age (47),
and in retaliation for prior EEO activity when:
On May 30, 1997, complainant was not recommended for the position of
Systems Analyst, EAS-19.
The agency dismissed complainant's complaint on the grounds of untimely
EEO Counselor contact. In its final decision, the agency noted that
complainant pursued the agency's May 30, 1997 decision through a
Merit System Protection Board (MSPB) appeal. The agency claimed that
complainant was notified from MSPB that his appeal was dismissed due to
lack of jurisdiction on November 3, 1997, and that the decision became
final on December 8, 1997. The agency claimed that since complainant did
not contact the Tennessee EEO Office until March 4, 1998, his contact
was beyond the forty-five day limitation period and, therefore, his
complaint was untimely.
On appeal, complainant claims that he did meet the forty-five day contact
requirement and that therefore his complaint should not be dismissed.
Complainant concedes that his MSPB appeal was dismissed due to lack of
jurisdiction on November 3, 1997, and that the decision became final on
December 8, 1997. However, complainant states that the MSPB decision
did not inform him that he had forty-five days to seek EEO Counseling.
Complainant states that on December 24, 1997, he received a letter from
the EEO Compliance and Appeals Coordinator, Southeast/Southwest Area
Office, stating that he should contact the agency's headquarters office
in order to initiate EEO counseling which complainant claims he did
by sending a certified letter on January 24, 1997, to the headquarters
EEO office. Complainant then states that he received an acknowledgment
letter from the headquarters EEO office which stated that complainant's
request for counseling would be processed by the Southeast/Southwest
Area Office. When complainant did not hear from the Southeast/Southwest
Office, he went to see a counselor in person on March 4, 1998.
The record shows that complainant filed an MSPB appeal regarding the
agency's decision not to promote him on July 3, 1997. According to
the record, the MSPB issued a decision on November 3, 1997, which
dismissed the appeal based on jurisdictional grounds. The record also
contains a December 24, 1997 letter to complainant from the agency's
headquarters EEO Office which informed complainant of his right to
contact an EEO Counselor within forty-five days of receipt of the
notice from the Board. In addition, the record contains a January 27,
1998 letter from complainant to the agency's headquarters EEO Office
in which complainant requested EEO Counseling. Also included in the
record is a February 6, 1998 letter from the headquarters EEO Office
to complainant which informed complainant that his complaint would be
forwarded to the Southeast/Southwest EEO Office and would be processed
there.
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.
According to 64 Fed. Reg. 37,644 37,659 (1999) (to be codified and
hereinafter referred to as 29 C.F.R. § 1614.302(b)), if a person files
a mixed case appeal to the MSPB alleging discrimination, and the MSPB
dismisses the appeal for lack of jurisdiction, the agency must notify
the aggrieved person of his right to contact an EEO Counselor within
forty-five days of receipt of the notice and to file an EEO complaint.
In addition, this regulation provides that the date of the initial EEO
Counselor contact will be deemed to be the date on which the MSPB appeal
was filed 29 C.F.R. § 1614.302(b).
In the present case, the alleged discriminatory act occurred on May
30, 1997, when complainant was not recommended for the Systems Analyst
position. Therefore, in order to be within the forty-five day limitation
period, complainant would have had to contact an EEO Counselor by July 14,
1997. Since complainant originally filed a mixed case appeal which was
dismissed by the MSPB for lack of jurisdiction, the date of the initial
EEO Counselor contact is the date on which the MSPB appeal was filed.
The record shows that complainant filed an MSPB appeal on July 3, 1997;
therefore, his initial EEO Counselor contact was timely.
Although complainant filed an MSPB appeal, his appeal was dismissed by
the Board for jurisdictional reasons on November 3, 1997. According to
29 C.F.R. § 1614.302(b), when the MSPB dismisses a mixed case appeal on
jurisdictional grounds, the agency is required to promptly notify the
individual in writing of the right to contact an EEO Counselor within
forty-five days of receipt of this notice and to file an EEO complaint.
In the present case, the record reveals that the agency sent complainant
the requisite notice of his right to contact an EEO Counselor on December
24, 1997. In addition, the record reveals that complainant requested
EEO counseling from the headquarters EEO office on January 27, 1998.
Thus, complainant timely contacted an EEO Counselor within forty-five
days of receipt of the requisite notice from the agency.
Accordingly, the agency's decision to dismiss complainant's complaint
was improper, and is hereby REVERSED. The complaint is REMANDED to the
agency for further processing in accordance with this decision and the
Order below.
ORDER (E1199)
The agency is ORDERED to process the remanded claims in accordance with
64 Fed. Reg. 37,644, 37,656-7 (1999) (to be codified and hereinafter
referred to as 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 an
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 (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 11, 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.
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128 | https://www.eeoc.gov/sites/default/files/decisions/2022_03_02/2021004197.pdf | 2021004197.pdf | PDF | application/pdf | 36,340 | Rosamaria F.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Field Are as and Regions), Agency. | July 18, 2021 | Appeal Number: 2021004197
Background:
At the time of events giving rise to this complaint, Complainant worked as a City Carrie r, Q-01,
at the Brooklyn Curtis Bay Branch in Baltimore, Maryland.
On October 24, 2020, Complainant filed a formal EEO c omplaint alleging that the Agency
subjected her to harassment/ a hostile work environment against her on the bases of sex (female) ,
disabi lity, and reprisal for prior protected activity when:
1. On September 11, 2019, her manager reported fraud to the Office of Workers
Compensation Program (“OWCP ”) her injury and she was not paid Continuation
of Pay ,
2. On February 20 and May 20, 2020, as well as other dates to be specified,
Management discussed her medical information and restrictions with others on
the workroom floor,
3. On March 13, 2020 and other dates to be specified, Management threatened her,
cursed at her , and made rude comments to her ,
4. On March 26, 2020, she was issued discipl ine,
5. On May 27, 2020, Management called her a liar and disrespected her in front of
coworkers ,
6. On June 10, 2020, Management told her that she was “useless” and “a waste of
time,”
7. On June 16, 2020, she was charged w ith 8 hour s of Absent Without Leave
(“AWOL ”),
8. On July 6, 2020 and other dates to be specified, Management allowed other
coworkers to bully her and did not take appropriate action,
9. On an ongoing basis, Management skipped over her while giving everyone els e
their da ily assignments,
10. On dates to be specified, s he was asked to go home early and to l eave before the
end of her tour ,
11. On dates to be specified, Management input the incorrect leave for he r absences,
12. On dates to be specified, she was told to only call the 1- 800 number when calling
for unscheduled absences while other coworker s could call the office directly or
call the supervisor directly , and,
13. On a date to be specified, he r manager showed threatening behavior when he
chased her around the buildi ng.
On November 23, 2020, the Agency issued a “Notice of Partial Acceptance/Partial Dismissal of
Formal Complaint” (“Partial Dismissal ”) to Complainant , dismissi ng Claim 1 for failure to state
a claim pursuant to 29 C.F.R. § 1614.107(a) (1), and, dismissi ng Claim 4 , to the extent that it
raised a discrete act of discrimination, as untimely raised with an EEO counselor pursuant to 29
C.F.R. §1614.105(a)(1) . Claims 2 through 13, including Claim 4, were accepted as allegations
comprising a hostile work environm ent, and an EEO Investigator was assigned to the matter.
On December 1, 2020, Complainant signed a form entitled “ Agreement to Exten d the 180- Day
EEO Investigative Process” (“Extensi on Form ”) where she requested a 60- day extension to
provide her affidavi t and other evidence in support of her claims during the investigation.
On December 2, 2020, the EEO In vestigator , mailed an affidavit request to Complainant , which ,
in addition to instructions on responding to the questions, informed Complainant that , “you, as
the complainant , have the burden of proof regarding your allegations . If this affida vit is not
returne d (via m ail) within 15 calendar days of receipt of this package, your complaint ma y be
dism issed in accordance with 29 Cod e of Federal Regulations 1614.107( g).”
The EEO Investigator also sent an email on December 2, 2020, notifying Comp lainant that the
affidavit request had been mailed and that Complainant’ s extension request was approved for 30
days. She explained that she needed Complainant to submit he r affidavit responses “as soon as
possible, ” in case she had to send a supplemental affidavit request based on Complainant ’s
responses. The EEO Investigator then stated , “I am attaching the affidavit questions in you
packet so you can begin responding to t he questions right away on your computer .” She asked
Complainant to confirm receip t of the affid avit packet by email, and to keep her updated, “ I will
want to monitor to see if we need more time. ” Complainant responded that she would.
On Fe bruary 16, 2021, Complainant submitted another Extension Form, where she requested an
additional 30 days to comp lete her affidavit responses. Complainant ’s stated reason for the
request was: “emergency issues delayed /death/medical. ”
On March 25, 2021, the EEO Investi gator emailed Complainant reques ting a status update , as
Complainant ’s affidavit was “long past due ,” and providing Complainant wi th another Extension
Form . Complainant replied on March 31, 2021, thanking the EEO Investigator for her assistance,
and explai ning that her stepmother died the day be fore. Complainant confirmed that she signed
the Extension Form and would submit her affidavit respons es the following Monday or as soon
as possible. The form, prepared by the EEO Counselor, and dated March 25, 2020, states, “I am
requesting a 30- day e xtension for additional affidavit preparation. ”
On or about May 21, 2021, the EEO Investigator submitted her report of investigation ( “ROI”) to
the Agency and Complainant . The Investigative Summary explained that Compl ainant did not
provide responses to the EEO Investigator ’s affidavit request , so only “general i nquiries” could
be m ade regarding many of Complainant ’s allegations . The Investigative Summary also
explained that for various reasons, most of the evidence Com plainant previous ly submitted with
her formal EEO c omplaint could not be considere d.
On June 3, 2021, the Agency issued a final action dismiss ing Claims 2 th rough 13 pursuant to
29 C.F.R . § 1614.107( a)(7), for failure to cooperate with an Agency’ s reque st for information,
and reiterated its dismissals of Claim s 1 and 4 in the Novemb er 23, 2020 Par tial Dismissal. The
instant appeal followed.
Legal Analysis:
The Commission’s rejection of such claims includes allegations similar to those in Claim 1,
where the claim of harassment is based on the Agency’s actions when reporting information
related to the complainant’ s workers ’ compensation claim to OWCP. For instance, in Hogan v.
Department of the Army , we reasoned that an allegation that agency officials provided
misleading statements to OWCP was an attempt to lodg e a collateral attack because revi ewing
such a claim would require the Commission to determine what workers' compensation benefits
the complainant would likely have received, which is an OWCP process outside EEOC
jurisdiction . See also Schneider v. U nited States Postal S erv., EEOC Request No. 05A01065
(Aug . 15, 2002) (rejecting the complainant’s claim that the a gency’s delay in processing her
OWCP paperwork constituted harassment) . Likewise, claims w here an agency management
official, such as the supervisor referenced in Claim 1, allegedly submitted fraudule nt or
otherwise deficient documentation to OWCP , thereby contravening the complainant ’s workers
compensation claim constitute impermissible collateral attacks . Bell v. Dep’ t of Transportation ,
EEOC Appeal No. 01991806 ( Jan. 11, 2001) . Claim 1 was properly dismissed p ursuant to 29
CF.R. § 1614.107(a)(1) .
Claim 4: Untimely EEO Contact In relevant part, 29 C.F.R. §1614.107(a)(2) , provides that an agency shall dism iss a complaint or
a portion of a complai nt that fails t o comply with the applicable time limits contained in
§1614.105, unless the A gency extends the time limits in accordance with §1614.604(c). The
regulation provided under 29 C.F.R. § 1614.105(a)(1) , states that complaints of discrimination
should be brought to the attention of the Equal Employment Opportunity Counselor within 45
calendar days of the date of the matter alleged to be discriminatory or, in the case of a personnel
action, within 45 days of the effective date of the action.
For Claim 4, the only evidence in the ROI that a disciplinary action o ccurred is Complainant ’s
March 28, 2020 signed rebuttal to the alleged disciplinary act. Based on th e rebuttal, and
because Complainant has not a lleged otherwise , we presume that the disciplinary action
referenced in Claim 4 became effective on March 26, 2020. Complainant ’s initial contact with
an EEO Counselor occurred more than 45 days later, on June 28, 2020, making it untimely .
As Claim 4 was not timely raised, it cannot be accepted for review as a discrete act of
discrimination. However, Claim 4, along with Complainant ’s remaining claims (apart from
Claim 1) comprise a single alleg ation of an ongoing hostile work environment with at least on e
claim falling within the 45 day limitation period f or EEO contact . Claim 4 is timely and may be
considered with respect to Complainant’ s harassment /hostile work environment claim only.
Claims 2 – 13: Failur e to C ooperate
The regulation set forth at 29 C.F.R . § 1614.107( a)(7) provides that an agency may dismiss a
complaint for failure to cooperate, or alternatively, adjudicate the complaint if sufficient
information for that purpose is availab le. The regulat ion is applicable under the following
circumst ances: (1) the agency has provided the complainant with a written request to provide
relevant information or to otherwise proceed with the complaint; (2) the request included a notice
of the propos ed dismissal for failure to respond within 15 days of recei pt of the request; and (3)
the complainant either fails to respond to the request within 15 days of receipt or the
complainant's response doe s not address the agency' s request.
Historically, the Commission “has been reluctant to permit the use of this p otent dismissal
authority.” Koch v. Sec. & Exchange Commission, EEOC Appeal No s. 01A04600, 01A05012,
& 01A01083 (Dec. 21, 2001) citing Card v. United States Postal Serv. , EEOC Request No.
05970095 (Apr. 23, 1998) other citations omitted. Therefore, our gui dance and precedence has
thoroughly esta blished that a dismissal of a complaint for failure to cooperate under
29 C.F.R . § 1614.107( a)(7), is only proper where there is sufficient evidence to support a
conclusi on that the complainant purposely engaged in delay or contumacious conduct, and there
was insufficient information in the record to have permitted the agency to continue the
investigation. See EEO Management Directive for 29 C.F.R. Part 1614 (“EEO-MD-110” ) Ch. 5
Sec. IV .B.2 (Aug. 5, 2015) citations om itted.
Here, the record reflects tha t the EEO Investigator provided Complainant with multiple written
requests to complete an affidavit in order provide relevant information to investigate her
complaint. Howe ver, the Commission is not convinced that the Agency provided Complainant
with writt en notice that failure to respond to the information request within 15 days of receipt of
the request could result in dismissal . See, e.g. St. Loui s v. Dep’t o f Homeland Se c., EEOC
Appeal No. 0120110958 (Nov. 8, 2011) ( dismissal for fai lure to cooperate improper where there
was insufficient evidence that the complainant received the af fidavit package, and the record
contained sufficient information to adjudicate the claim ), Carroll v. Dep’t of Homeland Sec.,
EEOC Appeal No. 0120092572 (Sept. 21, 2009) ( no evidence of “intentional delay ” by a
complainant who did not respond to the agency ’s mailed request for information where the
agency failed to establish actual receipt by th e complainant or that it attempted to follow u p on
its first request for information , and the agency ’s other mailed requests to the complainant
regarding separate claims were returned unclaimed weeks later ).
The regulations state that the time frames in 29 C.F.R. Part 1614 are to be calculated on act ual
receipt by a complainant when not represented by an attorney. The Comm ission has held that
receipt of a doc ument at a co mplainant's address of record, by a member of the complainant's
family or household of suitable age and discretion creates a rebutta ble presumption of
constructive receipt. Fontanella v. Gen. Servs. Admin ., EEOC Request No. 0519940131 (April
10, 1995). Where, as here, there is an issue of timeliness, "[a]n agency always bears the burden
of obtain ing 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)).
In the record, the only written notice that Complainant had 15 days to respond to the EEO
Investigator ’s request for information, and that failure to do so could result in di smissal pursuant
to 29 C.F.R . § 1614.107( a)(7), appears to be the December 2, 2020 letter that wa s physically
mailed to Complainant , accompan ying the affidavit questions . The Agency failed to provide
evidence that Complainant actually received the December 2, 2020 lett er. In the Invest igative
Summary, the EEO Investigator acknowledge d that the ROI does not contain a signed
confirmation of receipt : “Complainant’s delivery confirmation …initially did not reflect
delivery. After a lost claim was submitted to th e Postal Service, the USPS confi rmed that the
package was delivered; however, the delivery scan did not occur.” There is no indicat ion that thi s
letter was included when the EEO Investigator provided Complainant with the affidavit questions by email the same day.
Moreover, the EEO Investigator ’s subsequent emails to Complainant do not specify deadlines,
but request the affidavit responses “as soon as possible. ” None of the EEO Investigator ’s emails
specify that failure to provide the requested affidavit could result in dismissal . Likewise, t he
Extension Request Forms signed by Complainant do no t advise that failure to adhere to the
extended dea dline could result in dismissal. Even if the Agency established that Complainant
actually received the December 2, 2020 lett er, a single notice that failure to timely respond to an
EEO Investig ator’s information request co uld result in dismissal , is underm ined by EEO
Investigator ’s subsequent action of proactively offering extension forms to Complainant after not
hearing from h er for months after the deadline to submit the affidavit had passed.
Assuming, argue ndo, that the Agenc y did provide Complainant with proper notice that her
failure to respond to its requests within 15 days could result in the dismissal of her complaint, a
dismissal pursuant to 29 C.F.R . § 1614.107( a)(7) is not warranted in this case. The record is
sufficie ntly develope d for adjudic ation on the merits of Complainant ’s allegations, and i t is
devoid of evidence of a “clear record of delay ” or “contumacious conduct ” by Complainant.
A person’s conduct is contumacious when it is “willfully stubborn and disobedient.” EEO -MD-
110 Ch. 7 Se c. V.A.3 citing Black’s Law Dictionary (6th ed. 1990). Such conduct “may include
any unprofessional or disrespectful behavior; degrading, insulting, or threatening verbal remarks or conduct; the use of profanity; or conduct engaged in for the purpose of im properly delaying
the hearing. ” MD-110 Ch. 7 Sec. V.A.3 citing Bradley v. United Sta tes Postal Serv. , EEOC
Appeal Nos. 01952244, 01963827 (Sept . 18, 1996) .
For in stance, in Koc h v. Sec. & Exchange Commission, the complainant, among other things ,
“repeatedl y refused to respond either to agency or administrative judge orders for documents and
testimony. Instead, he engaged in procedural wrangling with EEO personnel … [and] leveled
personal attacks against both agency and EEOC employees, and even thr eatened suc h officials
with professional and criminal retaliation .”
The Com mission has previously found no evidence of “ a clear record of delay ” or
“contumacious conduct ” where the complainant responded to the EEO Investigator ’s
communications and their failure to provide an affidavit did not “ substantially inhibit the
Investigator 's ability to conduct an investigati on into her complaint.” Helen G. v. United States
Postal Serv. , EEOC Appeal No. 2021005154 (Nov. 8, 2021) (as the Investigator “assessed
numerous releva nt documents ” and was able to obtain five affidavits relevant to Complainant ’s
claims) citing Card , St. Loui s, (dismissal improper where the complainant failed to provide
affidavit, but the record contained sufficient information to adjudicate t he claim, n oting that “ the
EEO C ounselor ’s Re port provides detailed information” ), but see, Colon v. United States Postal
Serv. , EEOC Appeal No. 01997035 (Nov. 21, 2000) ( affirming dismissal for failure to cooperate
where the complainant was unresponsive t o the EEO C ounselor ’s inquiry, and the EEO
Investigator submitted three information re quests over a period of 9 months to both the
complainant and his representative s, where the fi nal letter warned that failure to respond in 15
days could result in dismis sal, and whe re complainant only responded to the final letter with a
request for a one week extension, and failed to follow up after it was granted) .
The Commission also takes into consideration whether the complainant ’s failure to provide
requested inf ormation was intentional. See, e.g. Rose v. United States Postal Serv., EEOC
Appeal No. 0120102939 (Nov. 29, 2010) (dismissal for fa ilure to cooperate was improper where,
on appeal , the complainant “provided a brief statement that she did not respond to t he agency's
information request in a timely manner, due to illness ”), Fisher v. United States Postal Serv. ,
EEOC Appeal No. 01A33258 (Mar. 12, 2004) (dismissal for fa ilure to cooperate was improper ,
noting the complainant’s actions did not indicate that sh e was “delib erately engaging in delay
tactics” where , on appea l, she persuasively explained that she failed to timely respond because
she was unable to contact her representative and did not believe she could adequately respond
without he representative’s assistance, noting the lengthy time between the filing of her
complaint and the commencement of the investigation (nearly a year and a half) , that she
informed the EEO Investigator of her dilemma after the second notice, and that she provided
evidence that her represe ntative was undergoing surgery during the relevant time frame) .
As of December 2, 2020, Complaina nt was in possession of the affidavit questions provi ded by
the EEO Investigator, and that she needed to provide her responses “ as soon as possible. ” The
record reflects that Complainant ’s completed affidavit was initially d ue on or about Januar y 18,
2021, based on the 30-day extension granted on Dec ember 2, 2021, and factoring in the initial 15
day filing period. Complainant ’s next communication with the EEO Investigat or appears not to
have occurred for an additional 72 days, and only after the EEO Investi gator contacted
Complainant about her “long past due” affidavit.
Ultimately, based on additional extensions granted by the EEO Investigator (so me retroactive , as
Complainant failed to follow up), the final deadline for Complainant to submit the completed
affidavit was on or about April 27, 2021.
On appeal, Complainant explains that during the time frame when she wa s asked to provide
information requested by the EEO Investigator, she “dealt with C OVID, being quarantined from
work related case, lost severa l members of my family to include my step mother, illness, and lost
my questions after completing them on my comput er before getting to print them out (over 10 0
answers) .” As there were 150 questions, some with multiple parts, Complainant found i t hard to
start over, once the answer s were “lost in the computer ,” and due to th e stress from medical and
family concerns sh e experienced during the filing time frame.
With the exception of her March 31, 2021 email to the EEO Investigator, which re ferenced the
death of her stepmother, Complainant did not con vey these difficulties in the email exchanges
with the EEO Investigato r. Rather, Complainant ’s responses to the EEO Investigator
acknowledge the EEO Investigator ’s sense of urgency to obtain the completed affid avit and
assure her that she will submit th e affidavit as soon as possible. There is no evidence that
Complainant p roactively requested the extensions , or took other measures to ensure t hat her
affidavit was timely submitted , such as requesting official t ime to complete it, se eking advice
from the Agency ’s EEO Office or a ssistance from a U nion re presentative.
Additionally, nothing in record supports a finding that Complainant was so incapacitated
throughout December 2, 2020 and April 27, 2021 t hat she was rendered unable to complete her
affidavit. While Complainant offers some m edical documentation to suppor t her appeal, it only
covers a portion of the releva nt time frame . See Fontenot v. United States Postal Serv ., EEOC
Request No. 05990216 (J une 4, 1999) (evidence that the complainant was incapacitated for part
of applicable pe riod does not justify failure to file before or after period of incapacity) . We note
that Complainant did not offer evidence that she was ever tested or diagnosed with C OVID.
Rathe r, she pr ovides a summary of a doctor visit on November 21, 2020, for a sore throat after
exposure to an individual with COVID . See Galbreath v. Dep ’t of the Navy , EEOC Request No.
05980927 (N ov. 4, 1999) (evidence that a complaina nt has sought treatment does not, without
evidence of incapacity, justify an extension of tim e). While Complainant offers evidence that
she was on leave without pay ( “LWOP ”) followin g this doctor visit, it appears sh e returned to
work in early January 2021, indicating that she wo uld also be capable of completing the affidavit
by the initial extended deadline. The Commission is also unpersuaded that Complainant ’s
technical difficulties , (on an unspecified date ) prevented her from completing the affidavit .
While her expl anati on on appeal was insufficient to warrant an extension of the deadline to
submit her affidavit responses, considering the communications of record and the circumstan ces
she descri bed, we find no indication that her actions were “intentional delay tacti cs.” We also
note that Complainant provided ample information through all prior stages of processing her
complaint and responded to the EEO Investigat or’s inquiries .
The EEO investigat or obtained affidavit testimony from four of the five responding management
officials ( “RMOs ”) Complainan t identified in her Formal Complaint. 2 Among other things, the
ROI also contains evidence related to Complainant ’s atten dance and l eave allegations , including
Complainant ’s PS Forms 3972 (Absence Analysis ) for 2020 and 2021, as well as the Pay
Calendar for 2020 and 2021. In addition, Complainant ’s supervisor submitted , along with her
affidavit, reports generated by the Agency’s Time and Atte ndance Coll ection System (“TA CS”)
with comparative leave information for other city carriers charged with AWOL.
Signifi cantly, the record contains multip le accounts of Complainant ’s allegations in her own
words, located in the EEO Counselor ’s Repo rt, several detail ed EEO Contact Summaries within
the EEO Alternative Dispute Resolution Specialist’s Inquiry Report, and in her Formal
Complaint, which also includes a timeline of the alleged harassment spanning April 2019
through June 2020. Complainant ’s March 28, 2020 re butta l to the alleged disciplinary action also
provides an account of the alleged discriminatory act from her perspective.
With her formal EEO complaint, Complainant enclosed supporting documents, including about
50 pages (large type ) of lengthy text conversations between her and several RMOs.3 These texts
are relevant to Complainant’s cla ims about being told to leave early and Management ’s response
to alleged coworker harassment. Complainant also provided complaints and grievances of
several of her coworkers naming some of the same RMOs in the instant complaint . While largely
irrelevant to the matter at hand, portions of these coworker grievances corroborate
Complaina nt’s allegatio ns of medical privacy violations that occurred on at least four s pecific
instances.4 Some statements reference Complainant, provid ing relevant background information
about RMO knowledge of Complainant ’s prior protected EEO activity, and reprisal as a basis for
the instant complaint.
We find, therefore, that the Agenc y should ha ve allowed for a decision on the merits rather than
dismissing the formal complaint for failure to cooperate. | Rosamaria F.,1
Complainant,
v.
Louis DeJoy,
Postmaster General,
United States Postal Service
(Field Are as and Regions),
Agency.
Appeal No. 2021004197
Agency No. 4K210011520
DECISION
On July 18, 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 June 3, 2021 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 a mended, 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.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a City Carrie r, Q-01,
at the Brooklyn Curtis Bay Branch in Baltimore, Maryland.
On October 24, 2020, Complainant filed a formal EEO c omplaint alleging that the Agency
subjected her to harassment/ a hostile work environment against her on the bases of sex (female) ,
disabi lity, and reprisal for prior protected activity when:
1. On September 11, 2019, her manager reported fraud to the Office of Workers
Compensation Program (“OWCP ”) her injury and she was not paid Continuation
of Pay ,
2. On February 20 and May 20, 2020, as well as other dates to be specified,
Management discussed her medical information and restrictions with others on
the workroom floor,
3. On March 13, 2020 and other dates to be specified, Management threatened her,
cursed at her , and made rude comments to her ,
4. On March 26, 2020, she was issued discipl ine,
5. On May 27, 2020, Management called her a liar and disrespected her in front of
coworkers ,
6. On June 10, 2020, Management told her that she was “useless” and “a waste of
time,”
7. On June 16, 2020, she was charged w ith 8 hour s of Absent Without Leave
(“AWOL ”),
8. On July 6, 2020 and other dates to be specified, Management allowed other
coworkers to bully her and did not take appropriate action,
9. On an ongoing basis, Management skipped over her while giving everyone els e
their da ily assignments,
10. On dates to be specified, s he was asked to go home early and to l eave before the
end of her tour ,
11. On dates to be specified, Management input the incorrect leave for he r absences,
12. On dates to be specified, she was told to only call the 1- 800 number when calling
for unscheduled absences while other coworker s could call the office directly or
call the supervisor directly , and,
13. On a date to be specified, he r manager showed threatening behavior when he
chased her around the buildi ng.
On November 23, 2020, the Agency issued a “Notice of Partial Acceptance/Partial Dismissal of
Formal Complaint” (“Partial Dismissal ”) to Complainant , dismissi ng Claim 1 for failure to state
a claim pursuant to 29 C.F.R. § 1614.107(a) (1), and, dismissi ng Claim 4 , to the extent that it
raised a discrete act of discrimination, as untimely raised with an EEO counselor pursuant to 29
C.F.R. §1614.105(a)(1) . Claims 2 through 13, including Claim 4, were accepted as allegations
comprising a hostile work environm ent, and an EEO Investigator was assigned to the matter.
On December 1, 2020, Complainant signed a form entitled “ Agreement to Exten d the 180- Day
EEO Investigative Process” (“Extensi on Form ”) where she requested a 60- day extension to
provide her affidavi t and other evidence in support of her claims during the investigation.
On December 2, 2020, the EEO In vestigator , mailed an affidavit request to Complainant , which ,
in addition to instructions on responding to the questions, informed Complainant that , “you, as
the complainant , have the burden of proof regarding your allegations . If this affida vit is not
returne d (via m ail) within 15 calendar days of receipt of this package, your complaint ma y be
dism issed in accordance with 29 Cod e of Federal Regulations 1614.107( g).”
The EEO Investigator also sent an email on December 2, 2020, notifying Comp lainant that the
affidavit request had been mailed and that Complainant’ s extension request was approved for 30
days. She explained that she needed Complainant to submit he r affidavit responses “as soon as
possible, ” in case she had to send a supplemental affidavit request based on Complainant ’s
responses. The EEO Investigator then stated , “I am attaching the affidavit questions in you
packet so you can begin responding to t he questions right away on your computer .” She asked
Complainant to confirm receip t of the affid avit packet by email, and to keep her updated, “ I will
want to monitor to see if we need more time. ” Complainant responded that she would.
On Fe bruary 16, 2021, Complainant submitted another Extension Form, where she requested an
additional 30 days to comp lete her affidavit responses. Complainant ’s stated reason for the
request was: “emergency issues delayed /death/medical. ”
On March 25, 2021, the EEO Investi gator emailed Complainant reques ting a status update , as
Complainant ’s affidavit was “long past due ,” and providing Complainant wi th another Extension
Form . Complainant replied on March 31, 2021, thanking the EEO Investigator for her assistance,
and explai ning that her stepmother died the day be fore. Complainant confirmed that she signed
the Extension Form and would submit her affidavit respons es the following Monday or as soon
as possible. The form, prepared by the EEO Counselor, and dated March 25, 2020, states, “I am
requesting a 30- day e xtension for additional affidavit preparation. ”
On or about May 21, 2021, the EEO Investigator submitted her report of investigation ( “ROI”) to
the Agency and Complainant . The Investigative Summary explained that Compl ainant did not
provide responses to the EEO Investigator ’s affidavit request , so only “general i nquiries” could
be m ade regarding many of Complainant ’s allegations . The Investigative Summary also
explained that for various reasons, most of the evidence Com plainant previous ly submitted with
her formal EEO c omplaint could not be considere d.
On June 3, 2021, the Agency issued a final action dismiss ing Claims 2 th rough 13 pursuant to
29 C.F.R . § 1614.107( a)(7), for failure to cooperate with an Agency’ s reque st for information,
and reiterated its dismissals of Claim s 1 and 4 in the Novemb er 23, 2020 Par tial Dismissal. The
instant appeal followed.
ANALYSIS AND FINDINGS
Claim 1: Failure to State a Claim – Collateral Attack
An agency shall dismiss a complai nt that fails to state a claim. 29 CF.R. § 1614.107(a)(1). The
Commission has gener ally held tha t comp laints involving other ad judicatory proceedings,
including those i nvolving OWCP ’s workers ’ compensation processes, fail to state a claim within
the meanin g of its regulations . See Wills v. Dep’t of Defense . EEOC Reques t No. 05970596
(July 30, 1998. Rather, such claims are con sidered impermiss ible collateral attacks. Id. A claim
that can be characterized as a collateral attack, by definition, involves a chal lenge to another
forum’s adjudicatory decision or proceedings. See Hogan v. Dep’t of the Army, EEOC Request
No. 05940407 (Sept . 29, 1994) .
The Commission’s rejection of such claims includes allegations similar to those in Claim 1,
where the claim of harassment is based on the Agency’s actions when reporting information
related to the complainant’ s workers ’ compensation claim to OWCP. For instance, in Hogan v.
Department of the Army , we reasoned that an allegation that agency officials provided
misleading statements to OWCP was an attempt to lodg e a collateral attack because revi ewing
such a claim would require the Commission to determine what workers' compensation benefits
the complainant would likely have received, which is an OWCP process outside EEOC
jurisdiction . See also Schneider v. U nited States Postal S erv., EEOC Request No. 05A01065
(Aug . 15, 2002) (rejecting the complainant’s claim that the a gency’s delay in processing her
OWCP paperwork constituted harassment) . Likewise, claims w here an agency management
official, such as the supervisor referenced in Claim 1, allegedly submitted fraudule nt or
otherwise deficient documentation to OWCP , thereby contravening the complainant ’s workers
compensation claim constitute impermissible collateral attacks . Bell v. Dep’ t of Transportation ,
EEOC Appeal No. 01991806 ( Jan. 11, 2001) . Claim 1 was properly dismissed p ursuant to 29
CF.R. § 1614.107(a)(1) .
Claim 4: Untimely EEO Contact In relevant part, 29 C.F.R. §1614.107(a)(2) , provides that an agency shall dism iss a complaint or
a portion of a complai nt that fails t o comply with the applicable time limits contained in
§1614.105, unless the A gency extends the time limits in accordance with §1614.604(c). The
regulation provided under 29 C.F.R. § 1614.105(a)(1) , states that complaints of discrimination
should be brought to the attention of the Equal Employment Opportunity Counselor within 45
calendar days of the date of the matter alleged to be discriminatory or, in the case of a personnel
action, within 45 days of the effective date of the action.
For Claim 4, the only evidence in the ROI that a disciplinary action o ccurred is Complainant ’s
March 28, 2020 signed rebuttal to the alleged disciplinary act. Based on th e rebuttal, and
because Complainant has not a lleged otherwise , we presume that the disciplinary action
referenced in Claim 4 became effective on March 26, 2020. Complainant ’s initial contact with
an EEO Counselor occurred more than 45 days later, on June 28, 2020, making it untimely .
As Claim 4 was not timely raised, it cannot be accepted for review as a discrete act of
discrimination. However, Claim 4, along with Complainant ’s remaining claims (apart from
Claim 1) comprise a single alleg ation of an ongoing hostile work environment with at least on e
claim falling within the 45 day limitation period f or EEO contact . Claim 4 is timely and may be
considered with respect to Complainant’ s harassment /hostile work environment claim only.
Claims 2 – 13: Failur e to C ooperate
The regulation set forth at 29 C.F.R . § 1614.107( a)(7) provides that an agency may dismiss a
complaint for failure to cooperate, or alternatively, adjudicate the complaint if sufficient
information for that purpose is availab le. The regulat ion is applicable under the following
circumst ances: (1) the agency has provided the complainant with a written request to provide
relevant information or to otherwise proceed with the complaint; (2) the request included a notice
of the propos ed dismissal for failure to respond within 15 days of recei pt of the request; and (3)
the complainant either fails to respond to the request within 15 days of receipt or the
complainant's response doe s not address the agency' s request.
Historically, the Commission “has been reluctant to permit the use of this p otent dismissal
authority.” Koch v. Sec. & Exchange Commission, EEOC Appeal No s. 01A04600, 01A05012,
& 01A01083 (Dec. 21, 2001) citing Card v. United States Postal Serv. , EEOC Request No.
05970095 (Apr. 23, 1998) other citations omitted. Therefore, our gui dance and precedence has
thoroughly esta blished that a dismissal of a complaint for failure to cooperate under
29 C.F.R . § 1614.107( a)(7), is only proper where there is sufficient evidence to support a
conclusi on that the complainant purposely engaged in delay or contumacious conduct, and there
was insufficient information in the record to have permitted the agency to continue the
investigation. See EEO Management Directive for 29 C.F.R. Part 1614 (“EEO-MD-110” ) Ch. 5
Sec. IV .B.2 (Aug. 5, 2015) citations om itted.
Here, the record reflects tha t the EEO Investigator provided Complainant with multiple written
requests to complete an affidavit in order provide relevant information to investigate her
complaint. Howe ver, the Commission is not convinced that the Agency provided Complainant
with writt en notice that failure to respond to the information request within 15 days of receipt of
the request could result in dismissal . See, e.g. St. Loui s v. Dep’t o f Homeland Se c., EEOC
Appeal No. 0120110958 (Nov. 8, 2011) ( dismissal for fai lure to cooperate improper where there
was insufficient evidence that the complainant received the af fidavit package, and the record
contained sufficient information to adjudicate the claim ), Carroll v. Dep’t of Homeland Sec.,
EEOC Appeal No. 0120092572 (Sept. 21, 2009) ( no evidence of “intentional delay ” by a
complainant who did not respond to the agency ’s mailed request for information where the
agency failed to establish actual receipt by th e complainant or that it attempted to follow u p on
its first request for information , and the agency ’s other mailed requests to the complainant
regarding separate claims were returned unclaimed weeks later ).
The regulations state that the time frames in 29 C.F.R. Part 1614 are to be calculated on act ual
receipt by a complainant when not represented by an attorney. The Comm ission has held that
receipt of a doc ument at a co mplainant's address of record, by a member of the complainant's
family or household of suitable age and discretion creates a rebutta ble presumption of
constructive receipt. Fontanella v. Gen. Servs. Admin ., EEOC Request No. 0519940131 (April
10, 1995). Where, as here, there is an issue of timeliness, "[a]n agency always bears the burden
of obtain ing 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)).
In the record, the only written notice that Complainant had 15 days to respond to the EEO
Investigator ’s request for information, and that failure to do so could result in di smissal pursuant
to 29 C.F.R . § 1614.107( a)(7), appears to be the December 2, 2020 letter that wa s physically
mailed to Complainant , accompan ying the affidavit questions . The Agency failed to provide
evidence that Complainant actually received the December 2, 2020 lett er. In the Invest igative
Summary, the EEO Investigator acknowledge d that the ROI does not contain a signed
confirmation of receipt : “Complainant’s delivery confirmation …initially did not reflect
delivery. After a lost claim was submitted to th e Postal Service, the USPS confi rmed that the
package was delivered; however, the delivery scan did not occur.” There is no indicat ion that thi s
letter was included when the EEO Investigator provided Complainant with the affidavit questions by email the same day.
Moreover, the EEO Investigator ’s subsequent emails to Complainant do not specify deadlines,
but request the affidavit responses “as soon as possible. ” None of the EEO Investigator ’s emails
specify that failure to provide the requested affidavit could result in dismissal . Likewise, t he
Extension Request Forms signed by Complainant do no t advise that failure to adhere to the
extended dea dline could result in dismissal. Even if the Agency established that Complainant
actually received the December 2, 2020 lett er, a single notice that failure to timely respond to an
EEO Investig ator’s information request co uld result in dismissal , is underm ined by EEO
Investigator ’s subsequent action of proactively offering extension forms to Complainant after not
hearing from h er for months after the deadline to submit the affidavit had passed.
Assuming, argue ndo, that the Agenc y did provide Complainant with proper notice that her
failure to respond to its requests within 15 days could result in the dismissal of her complaint, a
dismissal pursuant to 29 C.F.R . § 1614.107( a)(7) is not warranted in this case. The record is
sufficie ntly develope d for adjudic ation on the merits of Complainant ’s allegations, and i t is
devoid of evidence of a “clear record of delay ” or “contumacious conduct ” by Complainant.
A person’s conduct is contumacious when it is “willfully stubborn and disobedient.” EEO -MD-
110 Ch. 7 Se c. V.A.3 citing Black’s Law Dictionary (6th ed. 1990). Such conduct “may include
any unprofessional or disrespectful behavior; degrading, insulting, or threatening verbal remarks or conduct; the use of profanity; or conduct engaged in for the purpose of im properly delaying
the hearing. ” MD-110 Ch. 7 Sec. V.A.3 citing Bradley v. United Sta tes Postal Serv. , EEOC
Appeal Nos. 01952244, 01963827 (Sept . 18, 1996) .
For in stance, in Koc h v. Sec. & Exchange Commission, the complainant, among other things ,
“repeatedl y refused to respond either to agency or administrative judge orders for documents and
testimony. Instead, he engaged in procedural wrangling with EEO personnel … [and] leveled
personal attacks against both agency and EEOC employees, and even thr eatened suc h officials
with professional and criminal retaliation .”
The Com mission has previously found no evidence of “ a clear record of delay ” or
“contumacious conduct ” where the complainant responded to the EEO Investigator ’s
communications and their failure to provide an affidavit did not “ substantially inhibit the
Investigator 's ability to conduct an investigati on into her complaint.” Helen G. v. United States
Postal Serv. , EEOC Appeal No. 2021005154 (Nov. 8, 2021) (as the Investigator “assessed
numerous releva nt documents ” and was able to obtain five affidavits relevant to Complainant ’s
claims) citing Card , St. Loui s, (dismissal improper where the complainant failed to provide
affidavit, but the record contained sufficient information to adjudicate t he claim, n oting that “ the
EEO C ounselor ’s Re port provides detailed information” ), but see, Colon v. United States Postal
Serv. , EEOC Appeal No. 01997035 (Nov. 21, 2000) ( affirming dismissal for failure to cooperate
where the complainant was unresponsive t o the EEO C ounselor ’s inquiry, and the EEO
Investigator submitted three information re quests over a period of 9 months to both the
complainant and his representative s, where the fi nal letter warned that failure to respond in 15
days could result in dismis sal, and whe re complainant only responded to the final letter with a
request for a one week extension, and failed to follow up after it was granted) .
The Commission also takes into consideration whether the complainant ’s failure to provide
requested inf ormation was intentional. See, e.g. Rose v. United States Postal Serv., EEOC
Appeal No. 0120102939 (Nov. 29, 2010) (dismissal for fa ilure to cooperate was improper where,
on appeal , the complainant “provided a brief statement that she did not respond to t he agency's
information request in a timely manner, due to illness ”), Fisher v. United States Postal Serv. ,
EEOC Appeal No. 01A33258 (Mar. 12, 2004) (dismissal for fa ilure to cooperate was improper ,
noting the complainant’s actions did not indicate that sh e was “delib erately engaging in delay
tactics” where , on appea l, she persuasively explained that she failed to timely respond because
she was unable to contact her representative and did not believe she could adequately respond
without he representative’s assistance, noting the lengthy time between the filing of her
complaint and the commencement of the investigation (nearly a year and a half) , that she
informed the EEO Investigator of her dilemma after the second notice, and that she provided
evidence that her represe ntative was undergoing surgery during the relevant time frame) .
As of December 2, 2020, Complaina nt was in possession of the affidavit questions provi ded by
the EEO Investigator, and that she needed to provide her responses “ as soon as possible. ” The
record reflects that Complainant ’s completed affidavit was initially d ue on or about Januar y 18,
2021, based on the 30-day extension granted on Dec ember 2, 2021, and factoring in the initial 15
day filing period. Complainant ’s next communication with the EEO Investigat or appears not to
have occurred for an additional 72 days, and only after the EEO Investi gator contacted
Complainant about her “long past due” affidavit.
Ultimately, based on additional extensions granted by the EEO Investigator (so me retroactive , as
Complainant failed to follow up), the final deadline for Complainant to submit the completed
affidavit was on or about April 27, 2021.
On appeal, Complainant explains that during the time frame when she wa s asked to provide
information requested by the EEO Investigator, she “dealt with C OVID, being quarantined from
work related case, lost severa l members of my family to include my step mother, illness, and lost
my questions after completing them on my comput er before getting to print them out (over 10 0
answers) .” As there were 150 questions, some with multiple parts, Complainant found i t hard to
start over, once the answer s were “lost in the computer ,” and due to th e stress from medical and
family concerns sh e experienced during the filing time frame.
With the exception of her March 31, 2021 email to the EEO Investigator, which re ferenced the
death of her stepmother, Complainant did not con vey these difficulties in the email exchanges
with the EEO Investigato r. Rather, Complainant ’s responses to the EEO Investigator
acknowledge the EEO Investigator ’s sense of urgency to obtain the completed affid avit and
assure her that she will submit th e affidavit as soon as possible. There is no evidence that
Complainant p roactively requested the extensions , or took other measures to ensure t hat her
affidavit was timely submitted , such as requesting official t ime to complete it, se eking advice
from the Agency ’s EEO Office or a ssistance from a U nion re presentative.
Additionally, nothing in record supports a finding that Complainant was so incapacitated
throughout December 2, 2020 and April 27, 2021 t hat she was rendered unable to complete her
affidavit. While Complainant offers some m edical documentation to suppor t her appeal, it only
covers a portion of the releva nt time frame . See Fontenot v. United States Postal Serv ., EEOC
Request No. 05990216 (J une 4, 1999) (evidence that the complainant was incapacitated for part
of applicable pe riod does not justify failure to file before or after period of incapacity) . We note
that Complainant did not offer evidence that she was ever tested or diagnosed with C OVID.
Rathe r, she pr ovides a summary of a doctor visit on November 21, 2020, for a sore throat after
exposure to an individual with COVID . See Galbreath v. Dep ’t of the Navy , EEOC Request No.
05980927 (N ov. 4, 1999) (evidence that a complaina nt has sought treatment does not, without
evidence of incapacity, justify an extension of tim e). While Complainant offers evidence that
she was on leave without pay ( “LWOP ”) followin g this doctor visit, it appears sh e returned to
work in early January 2021, indicating that she wo uld also be capable of completing the affidavit
by the initial extended deadline. The Commission is also unpersuaded that Complainant ’s
technical difficulties , (on an unspecified date ) prevented her from completing the affidavit .
While her expl anati on on appeal was insufficient to warrant an extension of the deadline to
submit her affidavit responses, considering the communications of record and the circumstan ces
she descri bed, we find no indication that her actions were “intentional delay tacti cs.” We also
note that Complainant provided ample information through all prior stages of processing her
complaint and responded to the EEO Investigat or’s inquiries .
The EEO investigat or obtained affidavit testimony from four of the five responding management
officials ( “RMOs ”) Complainan t identified in her Formal Complaint. 2 Among other things, the
ROI also contains evidence related to Complainant ’s atten dance and l eave allegations , including
Complainant ’s PS Forms 3972 (Absence Analysis ) for 2020 and 2021, as well as the Pay
Calendar for 2020 and 2021. In addition, Complainant ’s supervisor submitted , along with her
affidavit, reports generated by the Agency’s Time and Atte ndance Coll ection System (“TA CS”)
with comparative leave information for other city carriers charged with AWOL.
Signifi cantly, the record contains multip le accounts of Complainant ’s allegations in her own
words, located in the EEO Counselor ’s Repo rt, several detail ed EEO Contact Summaries within
the EEO Alternative Dispute Resolution Specialist’s Inquiry Report, and in her Formal
Complaint, which also includes a timeline of the alleged harassment spanning April 2019
through June 2020. Complainant ’s March 28, 2020 re butta l to the alleged disciplinary action also
provides an account of the alleged discriminatory act from her perspective.
With her formal EEO complaint, Complainant enclosed supporting documents, including about
50 pages (large type ) of lengthy text conversations between her and several RMOs.3 These texts
are relevant to Complainant’s cla ims about being told to leave early and Management ’s response
to alleged coworker harassment. Complainant also provided complaints and grievances of
several of her coworkers naming some of the same RMOs in the instant complaint . While largely
irrelevant to the matter at hand, portions of these coworker grievances corroborate
Complaina nt’s allegatio ns of medical privacy violations that occurred on at least four s pecific
instances.4 Some statements reference Complainant, provid ing relevant background information
about RMO knowledge of Complainant ’s prior protected EEO activity, and reprisal as a basis for
the instant complaint.
We find, therefore, that the Agenc y should ha ve allowed for a decision on the merits rather than
dismissing the formal complaint for failure to cooperate.
CONCLUSION
The Agency’ s dismissal s of Claim 1 and Claim 4 ( to the extent that C laim 4 alleges a discrete
act) are AFFIRMED.
2 The affid avit responses for S1 and S2 were received and added to the ROI after it was already
submitted, so they are not discus sed in the ROI ’s investiga tive summary.
3 The EEO Investigator declined to include the text messages in her analysis as the dates of the
texts did not include the year. However, Complainant re ferences the year in on e of the texts, and,
the year for some texts can be surmised based on other accounts in the record , establishing that at
least some of the texts occurred during and discuss actions related to the relevant time fr ame.
4 The EEO Investigator also excluded these documents in their entirety.
The Agency’ s dismissal of Complainant ’s hostile work environment claim , comprised of the
incidents described in Claims 2 through 13, is REVERSED.
Claims 2 through 13 are hereby REMANDED for further process ing in accordance wit h this
Decision and the Ord er belo w.
ORDER ( C0618)
Within thirty (30) calendar day s of the date this decision is is sued, the Agenc y shall issue
Complainan t its report of in vestigation and a notic e of her right to request a hearin g before an
EEOC Adm inistrative Judge or to request a n immediate final decision from the Agency. The
Agency shall notify Complainant that she has thirty (30) calendar days from the date she
receives the notice to request a hearin g or to request an immediate fina l decision. If Complainant
requests a final decision without a hearin g, or if Complainant fails to respond to the notice, the
Agency shall issue a final decision with the appropriate appeal rights within sixty (60) calendar days of receipt of C omplainan t's request or, in the event that Complainant fails to respond to the
notice , once the deadline for Complainant to respond passes.
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 sev en (7) calendar days of the completion of each ordered
corrective action, the Agency shall submit via the Federal Sector EEO Porta l (FedSEP)
supporting documents in the digital format required by the Commission, referencing the
compli ance docket number under which compliance was being monitored. Once all compliance
is complete, the Agency shall submit via FedSEP a final compliance r eport in the digital format
requir ed by the Commission. See 29 C.F.R. § 1614.403(g). The Agency’s fina l report mus t
contain supporting documentation when previously not uploaded, and the Agency must send a
copy of all submissions to the Complainant and h is/her representative.
If the Ag ency does not comply with the Commission’s order, the Complainant may petition the
Commissio n 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 co mpliance with the Comm ission’s ord er 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
comp laint, inc luding any petition for enforcement, will be terminated . See 29 C.F.R.
§ 1614.409.
Failure by an agency to either file a compliance report or implement any of the orders set forth in
this decision, without good cause shown, may resul t 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
RECONSID ERATION (M0920)
The Commission may, in its discretion, reconsider this appellate decision if C omplainant 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 i nterpretation of material fact or
law; or
2. The appellate decision will have a substantia l impact on the policies, practices, or
operations of the agency.
Requests for reconsideration must be filed with EEOC’s Office o f Federal Operations ( OFO)
within thirty (30) calendar days of receipt of this decision. If the party requesting
reconsiderat ion 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 sha ll have twenty
(20) calendar days from receipt of another party’s requ est for reco nsideratio n within which to
submit a brief or statement in opposition. See 29 C.F.R. § 1614.405; Equal Employment
Opportunity Management Di rective for 29 C.F.R. Part 1614 (EEO MD- 110), at Chap. 9 § VII.B
(Aug. 5, 2015).
Complainant should submit his or her reques t 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/Porta l/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 certifie d mail addre ssed 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 b y 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 o pposition m ust also inc lude 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 f ile within the 30 -day time period will result in dismissal of the part y’s request for
reconsi deration as untimely, unless extenuating circumstances prevented the timely filing of the
request. Any supporting documentation must be submitted toge ther with th e request for
reconsideration. The Commission will conside r requests for reconsid eration fil ed after the
deadline only in very limited circumstances. See 29 C.F.R. § 1614.604(c) .
COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION (T0610)
This decision affirms the Agency’s final decision/action in part, but it also requires the Age ncy
to conti nue its adm inistrative 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 compla int which
the Commissio n 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 d ate you fil ed your complaint with th e 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 Ag ency head or department h ead, 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 o ffice, faci lity or
department in whi ch 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 fil e a civil acti on but cannot pay the fees, costs, or security to do so, you may
request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you i n the civil act ion, you ma y
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 10, 2022
Date | [
"Hogan v. Dep’t of the Army, EEOC Request No. 05940407 (Sept . 29, 1994)",
"Bell v. Dep’ t of Transportation , EEOC Appeal No. 01991806 ( Jan. 11, 2001)",
"Card v. United States Postal Serv., EEOC Request No. 05970095 (Apr. 23, 1998)",
"Carroll v. Dep’t of Homeland Sec., EEOC Appeal No. 0120092572 (Sept. 21, ... | [
-0.08220940083265305,
0.10156860947608948,
0.010927894152700901,
0.044061675667762756,
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0.0653822273015976,
0.009975153021514416,
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129 | https://www.eeoc.gov/sites/default/files/migrated_files/decisions/0120122603.txt | 0120122603.txt | TXT | text/plain | 26,310 | Ela O., Complainant, v. Jacob J. Lew, Secretary, Department of the Treasury (Internal Revenue Service), Agency. | June 1, 2012 | Appeal Number: 0120122603
Background:
At the time of events giving rise to this complaint, Complainant worked as a Tax Analyst, GS-09, at the Agency's Chamblee, Georgia facility. Complainant filed numerous EEO complaints prior to the issues that arose in these complaints.
On November 18, 2008, Complainant received a Leave Concern Letter from her supervisor (S1) dated October 20, 2008. Complainant complained to her second level supervisor (S2), who subsequently directed S1 to rescind the letter because he had approved all of Complainant's leave requests and had not counseled her regarding her leave usage prior to issuing the letter.
In January 2009 Complainant was reassigned to a Tax Analyst, GS-9, position in the Planning and Analysis office. Complainant's new supervisor (S3) requested leave calendars from all employees. Complainant requested leave on various dates in April, May, June, July, August, November, and December. S3 approved all of Complainant's leave except for the second week that she requested in December due to concerns about workload inventory management. S3 told Complainant that she would revisit the leave request closer to the holidays.
In early 2010, the Agency announced a vacancy for a Management and Program Assistant position, GS-12. Complainant applied for and qualified for the GS-11 position, and was subsequently interviewed. The interview panel selected the Selectee (no prior EEO activity) for the position.
In or around April 2010, S3 instructed Complainant to complete her time sheet to reflect the time that Complainant had been in training. Complainant refused to note the training on her time sheet, asserting that she felt this was fraudulent. As a result, on April 26, 2010, Complainant received a Letter of Reprimand for failure to follow a management direction.
Complainant sent an email to the Commissioner of the Agency regarding her EEO claims. Management found that this was in violation of the Agency's policy about bringing issues through the employee's chain of command instead of directly to the head of the Agency. As a result, the Planning and Analysis Chief issued Complainant a Counseling Memorandum dated June 14, 2010, directing her to follow the chain of command.
On April 8, 2010, Complainant requested immediate reassignment from S3's supervision, which was granted. On June 25, 2010, Complainant was reassigned back to her previous Management and Program Analyst, GS-9, position in the Examinations office, and had a new supervisor (S4) and second line supervisor (S5).
In April 2010, the Agency's Employee Tax Compliance (ETC) branch did an audit of all employees' tax files, which revealed that Complainant had failed to timely pay her 2008 taxes. As a result, the ETC Branch Chief forwarded the issue to Complainant's management chain for administrative handling, and S4 proposed to suspend Complainant for three days due to her tax noncompliance. Ultimately the S5 only suspended Complainant for one day, which was the lower end of the recommended discipline for a tax infraction by employees.
Complainant received a performance rating of "Exceeds Fully Successful" for the rating period that ended December 31, 2010. This rating included Complainant's work under both S3's and S4's supervision. Complainant did not agree with the rating.
In March 2011, Complainant brought her EEO complaints to the attention of the Wage & Investment Operating Division Commissioner. The Commissioner subsequently forwarded the email to S5 for a response. S5 reminded Complainant of the necessity of following the chain of command and reminded her that her EEO matters were being handled through the EEO process.
A few days later, Complainant again emailed the Wage & Investment Operating Division Commissioner and other Agency executives regarding the same EEO matters. As a result, S5 proposed a ten day suspension. Through the collective bargaining agreement process, Complainant was offered and accepted an alternate form of discipline; teaching a class on the importance of complying with the chain of command. Complainant never taught the class, and as a result, in September 2011 the Agency proceeded with implementing the discipline of a 10 day suspension for her misconduct.
On November 21, 2008, Complainant filed the first of four EEO complaints addressed in this appeal. Complainant alleged in those complaints that the Agency subjected her to a hostile work environment on the basis of reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 when, amongst other things, she received a leave concern letter, she was not selected for a GS-11 position, she received an unwarranted evaluation, she was denied a reassignment, she was denied advanced sick leave, and she was assigned work outside her position description.
At the conclusion of each of the investigations for the four Complaints, the Agency provided Complainant with a copy of the report of investigation and notice of her right to request a hearing before an EEOC Administrative Judge (AJ). Complainant timely requested a hearing for each complaint, and the AJ held hearings on May 18, 2011, February 17, 2012, March 7, 2012, and March 28, 2012. The AJ consolidated all of the complaints and issued a decision on May 1, 2012. The AJ found that Complainant failed to establish that she was subjected to retaliatory harassment. The Agency subsequently issued a final order adopting the AJ's finding that Complainant failed to prove that the Agency subjected her to discrimination as alleged.
Legal Analysis:
The Commission deems the appeal timely and accepts it pursuant to 29 C.F.R. § 1614.405(a). For the following reasons, the Commission AFFIRMS in part and REVERSES in part the Agency's final order.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Tax Analyst, GS-09, at the Agency's Chamblee, Georgia facility. Complainant filed numerous EEO complaints prior to the issues that arose in these complaints.
On November 18, 2008, Complainant received a Leave Concern Letter from her supervisor (S1) dated October 20, 2008. Complainant complained to her second level supervisor (S2), who subsequently directed S1 to rescind the letter because he had approved all of Complainant's leave requests and had not counseled her regarding her leave usage prior to issuing the letter.
In January 2009 Complainant was reassigned to a Tax Analyst, GS-9, position in the Planning and Analysis office. Complainant's new supervisor (S3) requested leave calendars from all employees. Complainant requested leave on various dates in April, May, June, July, August, November, and December. S3 approved all of Complainant's leave except for the second week that she requested in December due to concerns about workload inventory management. S3 told Complainant that she would revisit the leave request closer to the holidays.
In early 2010, the Agency announced a vacancy for a Management and Program Assistant position, GS-12. Complainant applied for and qualified for the GS-11 position, and was subsequently interviewed. The interview panel selected the Selectee (no prior EEO activity) for the position.
In or around April 2010, S3 instructed Complainant to complete her time sheet to reflect the time that Complainant had been in training. Complainant refused to note the training on her time sheet, asserting that she felt this was fraudulent. As a result, on April 26, 2010, Complainant received a Letter of Reprimand for failure to follow a management direction.
Complainant sent an email to the Commissioner of the Agency regarding her EEO claims. Management found that this was in violation of the Agency's policy about bringing issues through the employee's chain of command instead of directly to the head of the Agency. As a result, the Planning and Analysis Chief issued Complainant a Counseling Memorandum dated June 14, 2010, directing her to follow the chain of command.
On April 8, 2010, Complainant requested immediate reassignment from S3's supervision, which was granted. On June 25, 2010, Complainant was reassigned back to her previous Management and Program Analyst, GS-9, position in the Examinations office, and had a new supervisor (S4) and second line supervisor (S5).
In April 2010, the Agency's Employee Tax Compliance (ETC) branch did an audit of all employees' tax files, which revealed that Complainant had failed to timely pay her 2008 taxes. As a result, the ETC Branch Chief forwarded the issue to Complainant's management chain for administrative handling, and S4 proposed to suspend Complainant for three days due to her tax noncompliance. Ultimately the S5 only suspended Complainant for one day, which was the lower end of the recommended discipline for a tax infraction by employees.
Complainant received a performance rating of "Exceeds Fully Successful" for the rating period that ended December 31, 2010. This rating included Complainant's work under both S3's and S4's supervision. Complainant did not agree with the rating.
In March 2011, Complainant brought her EEO complaints to the attention of the Wage & Investment Operating Division Commissioner. The Commissioner subsequently forwarded the email to S5 for a response. S5 reminded Complainant of the necessity of following the chain of command and reminded her that her EEO matters were being handled through the EEO process.
A few days later, Complainant again emailed the Wage & Investment Operating Division Commissioner and other Agency executives regarding the same EEO matters. As a result, S5 proposed a ten day suspension. Through the collective bargaining agreement process, Complainant was offered and accepted an alternate form of discipline; teaching a class on the importance of complying with the chain of command. Complainant never taught the class, and as a result, in September 2011 the Agency proceeded with implementing the discipline of a 10 day suspension for her misconduct.
On November 21, 2008, Complainant filed the first of four EEO complaints addressed in this appeal. Complainant alleged in those complaints that the Agency subjected her to a hostile work environment on the basis of reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 when, amongst other things, she received a leave concern letter, she was not selected for a GS-11 position, she received an unwarranted evaluation, she was denied a reassignment, she was denied advanced sick leave, and she was assigned work outside her position description.
At the | Ela O.,
Complainant,
v.
Jacob J. Lew,
Secretary,
Department of the Treasury
(Internal Revenue Service),
Agency.
Appeal No. 0120122603
Hearing Nos. 410-2010-00183X, 410-2010-00483X, 410-2010-00324X, and 410-2010-0079X
Agency Nos. IRS090122F, IRS090939F, IRS100478F, and IRS110305F
DECISION
On June 1, 2012, Complainant filed an appeal from the Agency's May 1, 2012, final order concerning her equal employment opportunity (EEO) complaint alleging employment discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. § 2000e et seq. The Commission deems the appeal timely and accepts it pursuant to 29 C.F.R. § 1614.405(a). For the following reasons, the Commission AFFIRMS in part and REVERSES in part the Agency's final order.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Tax Analyst, GS-09, at the Agency's Chamblee, Georgia facility. Complainant filed numerous EEO complaints prior to the issues that arose in these complaints.
On November 18, 2008, Complainant received a Leave Concern Letter from her supervisor (S1) dated October 20, 2008. Complainant complained to her second level supervisor (S2), who subsequently directed S1 to rescind the letter because he had approved all of Complainant's leave requests and had not counseled her regarding her leave usage prior to issuing the letter.
In January 2009 Complainant was reassigned to a Tax Analyst, GS-9, position in the Planning and Analysis office. Complainant's new supervisor (S3) requested leave calendars from all employees. Complainant requested leave on various dates in April, May, June, July, August, November, and December. S3 approved all of Complainant's leave except for the second week that she requested in December due to concerns about workload inventory management. S3 told Complainant that she would revisit the leave request closer to the holidays.
In early 2010, the Agency announced a vacancy for a Management and Program Assistant position, GS-12. Complainant applied for and qualified for the GS-11 position, and was subsequently interviewed. The interview panel selected the Selectee (no prior EEO activity) for the position.
In or around April 2010, S3 instructed Complainant to complete her time sheet to reflect the time that Complainant had been in training. Complainant refused to note the training on her time sheet, asserting that she felt this was fraudulent. As a result, on April 26, 2010, Complainant received a Letter of Reprimand for failure to follow a management direction.
Complainant sent an email to the Commissioner of the Agency regarding her EEO claims. Management found that this was in violation of the Agency's policy about bringing issues through the employee's chain of command instead of directly to the head of the Agency. As a result, the Planning and Analysis Chief issued Complainant a Counseling Memorandum dated June 14, 2010, directing her to follow the chain of command.
On April 8, 2010, Complainant requested immediate reassignment from S3's supervision, which was granted. On June 25, 2010, Complainant was reassigned back to her previous Management and Program Analyst, GS-9, position in the Examinations office, and had a new supervisor (S4) and second line supervisor (S5).
In April 2010, the Agency's Employee Tax Compliance (ETC) branch did an audit of all employees' tax files, which revealed that Complainant had failed to timely pay her 2008 taxes. As a result, the ETC Branch Chief forwarded the issue to Complainant's management chain for administrative handling, and S4 proposed to suspend Complainant for three days due to her tax noncompliance. Ultimately the S5 only suspended Complainant for one day, which was the lower end of the recommended discipline for a tax infraction by employees.
Complainant received a performance rating of "Exceeds Fully Successful" for the rating period that ended December 31, 2010. This rating included Complainant's work under both S3's and S4's supervision. Complainant did not agree with the rating.
In March 2011, Complainant brought her EEO complaints to the attention of the Wage & Investment Operating Division Commissioner. The Commissioner subsequently forwarded the email to S5 for a response. S5 reminded Complainant of the necessity of following the chain of command and reminded her that her EEO matters were being handled through the EEO process.
A few days later, Complainant again emailed the Wage & Investment Operating Division Commissioner and other Agency executives regarding the same EEO matters. As a result, S5 proposed a ten day suspension. Through the collective bargaining agreement process, Complainant was offered and accepted an alternate form of discipline; teaching a class on the importance of complying with the chain of command. Complainant never taught the class, and as a result, in September 2011 the Agency proceeded with implementing the discipline of a 10 day suspension for her misconduct.
On November 21, 2008, Complainant filed the first of four EEO complaints addressed in this appeal. Complainant alleged in those complaints that the Agency subjected her to a hostile work environment on the basis of reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 when, amongst other things, she received a leave concern letter, she was not selected for a GS-11 position, she received an unwarranted evaluation, she was denied a reassignment, she was denied advanced sick leave, and she was assigned work outside her position description.
At the conclusion of each of the investigations for the four Complaints, the Agency provided Complainant with a copy of the report of investigation and notice of her right to request a hearing before an EEOC Administrative Judge (AJ). Complainant timely requested a hearing for each complaint, and the AJ held hearings on May 18, 2011, February 17, 2012, March 7, 2012, and March 28, 2012. The AJ consolidated all of the complaints and issued a decision on May 1, 2012. The AJ found that Complainant failed to establish that she was subjected to retaliatory harassment. The Agency subsequently issued a final order adopting the AJ's finding that Complainant failed to prove that the Agency subjected her to discrimination as alleged.
ANALYSIS AND FINDINGS
Pursuant to 29 C.F.R. § 1614.405(a), all post-hearing factual findings by an AJ 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.
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, at § VI.B. (November 9, 1999).
To establish a claim of hostile environment harassment, Complainant must show that: (1) she is a member of a statutorily protected class; (2) she 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; (4) the harassment affected a term or condition of employment and/or had the purpose or effect of unreasonably interfering with the work environment and/or creating an intimidating, hostile, or offensive work environment; and (5) there is a basis for imputing liability to the employer. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982); see also Flowers v. Southern Reg'l Physician Serv. Inc., 247 F.3d 229 (5th Cir. 2001); Fox v. General Motors Corp., 247 F.3d 169 (4th Cir. 2001); Humphrey v. U.S. Postal Serv., EEOC Appeal No. 01965238 (Oct. 16, 1998).
With regard to the Leave Concern Letter, evidence in the record establishes that S1 was concerned about Complainant's excessive use of leave and as a result issued her a letter. However, S2 told S1 to rescind the letter because he had approved the leave requests and had not verbally counseled Complainant about excessive leave prior to issuing the letter. The record indicates that S1 mistakenly thought that the Leave Concern Letter was an appropriate first step to address his concerns with Complainant about her excessive use of leave. There is no evidence in the record that S1 was motivated by Complainant's prior EEO activity when he issued the Leave Concern Letter.
With regard to S3 denying Complainant's advance leave request, the record establishes that S3 denied the request due to concerns about workload inventory management during that time of the year. Additionally, the denial was not absolute as she told Complainant that they could revisit the leave request closer to the holidays. There is no evidence in the record that this was due to Complainant's prior protected EEO activity.
With regard to the non-selection, the interview panel agreed that the Selectee had a stronger skill set than Complainant, including 16 years of management experience. Additionally, they asserted that the Selectee had the best interview. In contrast, the interview panel stated that Complainant had a poor interview and a very generic skill set. Complainant was ranked fourth and last out of the best qualified applicants, and the selecting official followed the interview panel's recommendation and selected the Selectee for the position. The AJ found that Complainant did not express an opinion that she was more qualified than the Selectee, nor did she compare her qualifications or her interview performance to the Selectee's qualifications or interview performance. After a review of the entire record, we find that Complainant failed to establish that her non-selection was motivated by discriminatory animus towards her prior protected EEO activity.
With regard to the April 26, 2010 Letter of Reprimand, the record reflects that this was issued because Complainant failed to follow management's instructions regarding her time sheet. While Complainant may have disagreed with management's instructions, she failed to present any evidence that management's actions were motivated by discrimination towards Complainant's prior EEO activity.
The record reflects that Complainant was suspended for one day because she failed to timely pay her 2008 taxes. The record reflects that this was standard when any Agency employee failed to comply with tax regulations, and this was actually a lenient discipline when compared to the Agency's recommended disciplinary actions for such offenses. Additionally, there is no evidence in the record that this was motivated by discrimination towards her prior protected EEO activity.
With regard to Complainant's 2010 performance evaluation, the AJ found that while Complainant disagreed with her performance rating, she did not offer any evidence that she was deserving of a higher rating. We find that there is no evidence that her rating was motivated by discriminatory animus towards Complainant because of her prior protected EEO activity.
Finally, we will address the Agency's disciplinary actions towards Complainant when she brought her EEO concerns to Agency leadership. We note that employees should not be disciplined for reporting EEO matters, as such discipline could be a per se violation of our EEO laws' prohibition on retaliation, and could certainly have a chilling effect on the EEO process as it could reasonably deter employees from pursuing the EEO process. This includes reporting EEO matters to Agency leadership.
The record is clear that in each instance that Complainant raised her EEO concerns with Agency leaders she was subjected to varying forms of discipline. For example, Complainant sent an email to the Commissioner of the Agency regarding her EEO claims, and as a result, she was issued a Counseling Memorandum dated June 14, 2010, directing her to follow her immediate chain of command instead of bringing these issues to Agency leadership. In March 2011, Complainant brought her EEO concerns to the attention of the Wage & Investment Operating Division Commissioner, and as a result Complainant was verbally counseled about the necessity of following the chain of command. A few days later, Complainant again emailed the Wage & Investment Operating Division Commissioner and other Agency executives regarding the same EEO matters, and as a result she was issued a 10 day suspension.
We note that each time that Complainant brought to Agency leadership's attention her EEO concerns, she was engaging in a protected EEO activity because she was opposing discrimination by explicitly communicating to her employer a belief that the Agency's activities constitute employment discrimination. See EEOC Compliance Manual, Section 8, "Retaliation," No. 915.003 (May 20, 1998) at 8-3. We find that disciplining an individual for raising EEO concerns with Agency leadership has a chilling effect on the EEO process as it is reasonably likely to deter others from opposing discrimination by bringing EEO concerns to the attention of Agency leadership. This may also have a chilling effect on the EEO process by deterring individuals who believe they are being subjected to harassment by individuals in their chain of command from raising these matters to higher level officials.
We also note that after Complainant continued to contact Agency leadership about her EEO concerns, the Agency attempted to have Complainant teach a class to other employees on the importance of complying with the chain of command. The record indicates that the purpose of this class was to use Complainant as an example, and the class would have relayed the message to other employees that they cannot raise EEO matters with upper leadership of the Agency, and instead can only raise these issues with their immediate chain of command and the EEO office. While the class never took place because Complainant refused to conduct it, we note that this certainly would have caused a chilling effect on the EEO process as it would have deterred individuals from opposing discrimination by bringing EEO concerns to the attention of Agency leadership.
After a review of the entire record, we find that Complainant established that she was subjected to reprisal discrimination when she was issued a Counseling Memorandum, verbally counseled, and issued a 10 day suspension for bringing her EEO concerns to Agency leadership and outside of her immediate chain of command.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM in part and REVERSE in part, as a preponderance of the evidence of the record establishes that Complainant was subjected to reprisal when she was disciplined for bringing her EEO concerns to the attention of Agency leadership, as described above. The Agency is ORDERED to comply with our Order below.
ORDER
The Agency is hereby ORDERED to take the following actions:
1. The Agency will immediately take steps to ensure that all reprisal ceases and desists in the facility. The Agency will ensure that it takes steps to immediately address any reports of reprisal brought to its attention, and that employees know that they can bring EEO concerns to Agency leaders.
2. Within 120 days of the date on which this decision becomes final, the Agency shall expunge all of Complainant's records of any reference to the disciplinary actions and counselings that she received for reporting her EEO concerns out of the chain of command and to Agency leadership, including but not limited to the 10 day suspension.
3. Within 120 days of the date on which this decision becomes final, the Agency shall calculate an award of back pay with interest, and any benefits due, in accordance with 5 CFR § 1614.501, for the 10 days that Complainant was suspended. 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 about the amount of back pay, interest due, and/or other benefits, the Agency will issue a check to Complainant for the undisputed amount within 120 calendar days of the date this decision becomes final. Complainant may petition for enforcement or clarification of the amount in dispute. This petition must be sent to the Compliance Officer as referenced in the implementation paragraph below.
4. 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 her right to submit objective evidence (pursuant to the guidance given in Carle v. Department of the Navy, EEOC Appeal No. 01922369 (January 5, 1993)) and request objective evidence from complainant in support of her 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.
5. Within 120 days of the date on which this decision becomes final, the Agency shall provide specialized, in person, 8 hour training to all Agency management officials at the Agency's Chamblee, Georgia facility regarding employees' rights and managements' responsibilities with respect to EEO laws, with special emphasis on retaliation.
6. The Agency shall consider taking disciplinary action against the responsible management officials who disciplined Complainant for contacting Agency leadership. 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. The Commission does not consider training to constitute disciplinary action.
7. The Agency shall post the attached Notice of Discrimination, as described 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 (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.
POSTING ORDER (G0914)
The Agency is ordered to post at the Agency's Chamblee, Georgia 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 within 30 calendar days of the date this decision becomes final, 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 at the address cited in the paragraph entitled "Implementation of the Commission's Decision," within 10 calendar days of the expiration of the posting period.
ATTORNEY'S FEES (H0610)
If Complainant has been represented by an attorney (as defined by 29 C.F.R. § 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. § 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.
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
5-8-2015
__________________
Date
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130 | https://www.eeoc.gov/sites/default/files/migrated_files/decisions/0120170849.pdf | 0120170849.pdf | PDF | application/pdf | 26,550 | Alden G.,1 Complainant, v. Nancy A. Berryhill, Acting Commissioner, Social Security Administration, Agency. | December 19, 2016 | Appeal Number: 0120170849
Background:
At the time of events giving rise to this complaint, Complainant worked as a Claims Representative (Bilingual), GS -11, at the Agency’s Pontiac District Office in Pontiac, Michigan.
On December 15, 2014, Compl ainant filed an EEO complaint alleging that the Agency
discriminated against him on the bas is of race ( Mexican American )2 and in reprisal for prior
protected EEO activity . In its acceptance letter, the Agency defined the accepted issues as
“[w]hether the Agency subjected Complainant to non- sexual harassment and/or hostile work
environment” on the bases of race and reprisal when:
1. on or about October 31, 2014, Complainant overheard a conference call wherein
management was attempting to solicit statements from the staff in order to label
him a bully;
2. on unspecified dates Complainant's co -workers have destroyed his work in order
to sabotage him;
3. on November 17, 2014, Complainant was notified that his request to be paid
administrative leave for the dates of November 3 -5, 2014, had been denied; and
4. beginning in November 2014 and continuing , Complainant has been assigned
walk -ins and phone duty, and other employe es are assigning appointments in his
name when he is not on the schedule for those particular assignments.
In a December 17, 2014, email to the Agency’s Area Director (AD), Complainant noted that he had met with AD on December 12, 2014, and that AD had asked him to explain why he believed
that management had subjected him to a hostile work environment. Complainant asserted that he had heard AD instruct managers to have employees write that Complainant was bullying them.
He also asserted that managers subjected him to unwelcome conduct and intimidation, used
coworkers to harass him, and failed to investigate his harassment complaints. In his affidavit, Complainant stated that he participated in EEO activity as a union representative when he helped other employees with their EEO complaints. He alleged that management allowed other employees to treat him differently because of his union and EEO activities and that other employees have made negative comments about him. He asserted that the different treatment started two or three weeks after he began his union and EEO activities. Complainant stated that he heard his name mentioned when he walked past an office on October 31, 2014, while his Operations Supervisor (S1), another Operations Supervisor (S2) , the
Assistant District Manager (ADM), and the District Manager (DM) were on a conference call with the Area Director (AD). He alleged that AD “was providing managers orders to solicit
derogatory statements from employees based on a report from ” a September 2014 visit by
representatives of the Agency’s Office of Civil Rights and Equal Opportunity Office (OCREO). According to Complainant, AD told managers that this would enable management to take action.
2 Although Complainant identified his race as “Mexican American ,” the Commission recognizes
this term as an indication of national origin rather than race.
Complainant also stated that, on August 5, 2014, a coworker (CW1) put Complainant’s name on
an appointment that was not his, complained that Complainant had left work, and, upon learning that Complainant had not left, yelled at him. He asserted that, on A ugust 15, 2014, another
coworker (CW2) “put up a slip for one of [his] claimants” and quoted the claimant as saying that Complainant did not do his job. According to Complainant, he spoke with the claimant, she denied saying that, and she submitted a writ ten statement.
In addition, Complainant asserted that ADM verbally approved his request for administrative leave for EEO purposes but later denied the leave. Complainant also asserted that managers and other employees would assign appointments to him w ithout his knowledge, that he would have
to check the monitor every 20 minutes, that this interfered with his adjudication time, and that he was the only employee treated like this. AD stated in his affidavit that two EEO investigators from the Agency’s Chicago Office
conducted training at the Pontiac facility in 2014 and that they submitted a report about the facility. According to AD, 11 employees complained to the investigators that Complainant harassed other employees, stole their lunches, was disre spectful to management and visitors, and
rarely worked. AD stated that the investigators asked him to have managers inform employees
that they should report inappropriate behavior to management and management would look into the matter. He denied Complai nant’s request to see the OCREO report because Complainant
“had no need to know.” He stated that he had a conference call with managers regarding the report, that he told them to hold a staff meeting to address the complaints against Complainant and to le t employees know that they should come forward if they felt harassed, that managers
held the meeting, and that Complainant’s name was not mentioned during the meeting. He denied telling managers to “solicit” statements about Complainant. AD stated that C omplainant
sent him emails complaining about the alleged harassment and that he directed the District Manager to investigate Complainant’s allegations. He was aware of Complainant’s EEO activity because he received monthly reports from OCREO and saw Compl ainant’s name on a few
complaints. DM similarly stated that he was aware of Complainant’s EEO activity. He estimated that Complainant had three pending EEO cases of his own and was the representative for seven other EEO cases. DM stated that he invest igated Complainant’s harassment allegations and sent
Complainant a January 22, 2015, email stating that he had found no evidence to support the allegations. He also stated that the October 31, 2014, conference call addressed the “numerous complaints” cont ained in the OCREO report and that “[t] here was no request or order to obtain
statements from the staff to labe l anyone as a bully .” After Complainant alleged that an
employee had typed incorrect information on a screen, DM spoke with the employee and determined that she was trying to provide information to help the next person who would
interview the claimant. DM stated that managers rarely approve administrative leave, that “EEO time is duty time,” and that no other employees had received administrative leave for EEO
purposes. He could not recall any instances when Complainant had unnecessary appointments assigned to him.
ADM stated that managers discussed the OCREO report and how to handle matters raised in the
report during the October 31, 2014, me eting. Like DM, ADM stated that EEO time “is
considered regular duty time” and that no employees had received leave for EEO purposes. She
denied that Complainant verbally requested administrative leave for EEO purposes. According to ADM, Complainant submitted a leave slip “for a leave period when he called into work” and should have requested sick or annual leave. She was aware that Complainant had filed prior EEO complaints and had served as a representative for other employees who filed complaints. S1, who knew that Complainant had represented other employees in EEO matters, stated that Complainant did not complain to him about alleged harassment. With respect to the October 2014 meeting, it was his understanding that, “if anyone felt threaten[ed] or bullied by [Complainant], then we would like them to document it.” According to S1, he overheard the conversation between Complainant and CW1 about putting Complainant’s name on an appointment and told CW1 not to make assignments to other people.
S2 stated that, during the October 2014 meeting, managers “ were advised that some serious
accusations had been made and in order to take action, we would need statements from the
employees making the accusations .” She did not recall that anyone had used the term “bully.”
She asserted that it was common for employees who performed “walk -in duty” to have
appointments assigned to them. She was aware of Complainant’s EEO activity.
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 .
During the hearing process, Complainant and the Agency entered a Stipulation and Protective
Order that stated, “ Information provided by [the Agency] to Complainant and his representative
that is covered by this Stipulation and Protective Order, shall not be used by Complainant or his
counsel for any purpose except as necessary for the prosecution of the instant litigation. ”
Complainant violated the Order when he used one of the Agency -produced documents as an
exhibit during an arbitration hearing on his termination from the Agency. In response to the Agency ’s Motion for Sanctions, Complainant acknowledged that he violated the Order but
argued that he needed to use the document for the arbitration. The AJ noted, however, that Complainant had deliberately blacked out the text “CONFIDENTIAL – SUBJECT TO
PROTEC TIVE ORDER” from the document when he submitted it at the arbitration hearing.
She also noted that he had not requested a modification of the Protective Order to enable him to use the document. Accordingly, the AJ granted the Agency’s Motion for Sanctions, dismissed Complainant’s hearing request, and remanded the case to the Agency for the issuance of a final decision pursuant to 29 C.F.R. § 1614.110(b).
In its final decision, the Agency found that Complainant did not show that the Agency subjected
him to unlawful discrimination. The Agency concluded that Complainant belonged to protected
classes and was subjected to unwelcome conduct. The Agency also concluded that Complainant did not show that the conduct was related to his race. In addition, the A gency stated that
Complainant’s actions as a union representative for other employees’ EEO complaints did not
constitute protected EEO activity. The Agency concluded, however, that “ the record shows that
Complainant was involved in numerous EEO complaints of his own,” that “Complainant’s
previous complaint was resolved two to five months prior to the adverse actions in the instant
complaint ,” and that his “prior EEO activity was recent enough to create a nexus between the
alleged conduct and his protected activity.” With respect to the October 31, 2014, meeting, the
Agency stated that “management merely holding a meeting does not affect Complainant’s
employment” and was not severe or pervasive. Similarly, the Agency concluded that, even if
CW2 entered err oneous information into the VIP system, such conduct was not severe or
pervasive. In addition, the Agency stated that, absent evidence of discriminatory intent, neither
the denial of leave nor the routine assignment of duties constitutes harassment. The Agency also stated that CW1’s actions were not severe or pervasive. The Agency concluded that the incidents at issue, even when considered as a whole and assumed to be true, did not rise to the level of a hostile work environment. Further, the Agency f ound that “management explained that the alleged harassment either did not
occur or was not severe or pervasive.” With respect to Complainant’s claim that management solicited complaints against him, the Agency stated that the Chicago OCREO had received complaints about Complainant and that managers asked employees to speak to them directly. In
addition, the Agency noted that DM stated that he investigated Complainant’s claim that CW2 tried to sabotage his work and that CW2 was only trying to input inform ation that would help the
person who interviewed the claimant. The Agency also stated that administrative leave was not intended for EEO work, that managers redistributed work when an employee was out, that S1 spoke with CW1 after Complainant told him tha t CW1 had assigned him work and yelled at him,
and that Complainant has not pointed to subsequent problems with CW1.
CONTENTIONS ON APPEAL
On appeal, Complainant states that the Agency terminated his employment illegally and that he
violated the Stipulation and Protective Order “for the health and safety of [his] family.” He
submits a copy of an arbitrator’s decision overturning the termination.
In response, the Agency argues that the AJ properly dismissed Complainant’s hearing request as
a sanction for violating the Protective Order. The Agency also argues that Complainant did not
establish that the Agency subjected him to a hostile work environment based on race or reprisal.
STANDARD OF REVIEW
As this is an appeal from a decision issued without a hearing, pursuant to 29 C.F.R. § 1614.110(b), the Agency's decision is subject to de novo review by the Commission. 29 C.F.R.
§ 1614.405(a). See
Equal Employment Opportunity Management Directive for 29 C.F.R. Part
1614 , at Chapter 9, § VI.A. (Au g. 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 Agency’s final decision.
ISSUES PRESENTED
The issues presented are (1) whether the Equal Employment Opportunity Commission
Administrative Judge (AJ) properly dismissed Complainant’s request for a hearing, and (2) whether the Agency subjected Complainant to harassment based on race and reprisal for prior
protected EEO activity .
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Claims Representative (Bilingual), GS -11, at the Agency’s Pontiac District Office in Pontiac, Michigan.
On December 15, 2014, Compl ainant filed an EEO complaint alleging that the Agency
discriminated against him on the bas is of race ( Mexican American )2 and in reprisal for prior
protected EEO activity . In its acceptance letter, the Agency defined the accepted issues as
“[w]hether the Agency subjected Complainant to non- sexual harassment and/or hostile work
environment” on the bases of race and reprisal when:
1. on or about October 31, 2014, Complainant overheard a conference call wherein
management was attempting to solicit statements from the staff in order to label
him a bully;
2. on unspecified dates Complainant's co -workers have destroyed his work in order
to sabotage him;
3. on November 17, 2014, Complainant was notified that his request to be paid
administrative leave for the dates of November 3 -5, 2014, had been denied; and
4. beginning in November 2014 and continuing , Complainant has been assigned
walk -ins and phone duty, and other employe es are assigning appointments in his
name when he is not on the schedule for those particular assignments.
In a December 17, 2014, email to the Agency’s Area Director (AD), Complainant noted that he had met with AD on December 12, 2014, and that AD had asked him to explain why he believed
that management had subjected him to a hostile work environment. Complainant asserted that he had heard AD instruct managers to have employees write that Complainant was bullying them.
He also asserted that managers subjected him to unwelcome conduct and intimidation, used
coworkers to harass him, and failed to investigate his harassment complaints. In his affidavit, Complainant stated that he participated in EEO activity as a union representative when he helped other employees with their EEO complaints. He alleged that management allowed other employees to treat him differently because of his union and EEO activities and that other employees have made negative comments about him. He asserted that the different treatment started two or three weeks after he began his union and EEO activities. Complainant stated that he heard his name mentioned when he walked past an office on October 31, 2014, while his Operations Supervisor (S1), another Operations Supervisor (S2) , the
Assistant District Manager (ADM), and the District Manager (DM) were on a conference call with the Area Director (AD). He alleged that AD “was providing managers orders to solicit
derogatory statements from employees based on a report from ” a September 2014 visit by
representatives of the Agency’s Office of Civil Rights and Equal Opportunity Office (OCREO). According to Complainant, AD told managers that this would enable management to take action.
2 Although Complainant identified his race as “Mexican American ,” the Commission recognizes
this term as an indication of national origin rather than race.
Complainant also stated that, on August 5, 2014, a coworker (CW1) put Complainant’s name on
an appointment that was not his, complained that Complainant had left work, and, upon learning that Complainant had not left, yelled at him. He asserted that, on A ugust 15, 2014, another
coworker (CW2) “put up a slip for one of [his] claimants” and quoted the claimant as saying that Complainant did not do his job. According to Complainant, he spoke with the claimant, she denied saying that, and she submitted a writ ten statement.
In addition, Complainant asserted that ADM verbally approved his request for administrative leave for EEO purposes but later denied the leave. Complainant also asserted that managers and other employees would assign appointments to him w ithout his knowledge, that he would have
to check the monitor every 20 minutes, that this interfered with his adjudication time, and that he was the only employee treated like this. AD stated in his affidavit that two EEO investigators from the Agency’s Chicago Office
conducted training at the Pontiac facility in 2014 and that they submitted a report about the facility. According to AD, 11 employees complained to the investigators that Complainant harassed other employees, stole their lunches, was disre spectful to management and visitors, and
rarely worked. AD stated that the investigators asked him to have managers inform employees
that they should report inappropriate behavior to management and management would look into the matter. He denied Complai nant’s request to see the OCREO report because Complainant
“had no need to know.” He stated that he had a conference call with managers regarding the report, that he told them to hold a staff meeting to address the complaints against Complainant and to le t employees know that they should come forward if they felt harassed, that managers
held the meeting, and that Complainant’s name was not mentioned during the meeting. He denied telling managers to “solicit” statements about Complainant. AD stated that C omplainant
sent him emails complaining about the alleged harassment and that he directed the District Manager to investigate Complainant’s allegations. He was aware of Complainant’s EEO activity because he received monthly reports from OCREO and saw Compl ainant’s name on a few
complaints. DM similarly stated that he was aware of Complainant’s EEO activity. He estimated that Complainant had three pending EEO cases of his own and was the representative for seven other EEO cases. DM stated that he invest igated Complainant’s harassment allegations and sent
Complainant a January 22, 2015, email stating that he had found no evidence to support the allegations. He also stated that the October 31, 2014, conference call addressed the “numerous complaints” cont ained in the OCREO report and that “[t] here was no request or order to obtain
statements from the staff to labe l anyone as a bully .” After Complainant alleged that an
employee had typed incorrect information on a screen, DM spoke with the employee and determined that she was trying to provide information to help the next person who would
interview the claimant. DM stated that managers rarely approve administrative leave, that “EEO time is duty time,” and that no other employees had received administrative leave for EEO
purposes. He could not recall any instances when Complainant had unnecessary appointments assigned to him.
ADM stated that managers discussed the OCREO report and how to handle matters raised in the
report during the October 31, 2014, me eting. Like DM, ADM stated that EEO time “is
considered regular duty time” and that no employees had received leave for EEO purposes. She
denied that Complainant verbally requested administrative leave for EEO purposes. According to ADM, Complainant submitted a leave slip “for a leave period when he called into work” and should have requested sick or annual leave. She was aware that Complainant had filed prior EEO complaints and had served as a representative for other employees who filed complaints. S1, who knew that Complainant had represented other employees in EEO matters, stated that Complainant did not complain to him about alleged harassment. With respect to the October 2014 meeting, it was his understanding that, “if anyone felt threaten[ed] or bullied by [Complainant], then we would like them to document it.” According to S1, he overheard the conversation between Complainant and CW1 about putting Complainant’s name on an appointment and told CW1 not to make assignments to other people.
S2 stated that, during the October 2014 meeting, managers “ were advised that some serious
accusations had been made and in order to take action, we would need statements from the
employees making the accusations .” She did not recall that anyone had used the term “bully.”
She asserted that it was common for employees who performed “walk -in duty” to have
appointments assigned to them. She was aware of Complainant’s EEO activity.
At the | Alden G.,1
Complainant,
v.
Nancy A. Berryhill,
Acting Commissioner,
Social Security Administration,
Agency.
Appeal No. 0120170849
Hearing No. 471-2015-00130X
Agency No. CHI-15-0111- SSA
DECISION
On December 19, 2016, Complainant filed an appeal with the Equal Employment Opportunity
Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s December 2, 2016, final decision concerning his equal employment opportunity (EEO) complaint alleging employment discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. § 2000e et seq. For the following reasons, the Commission AFFIRMS the Agency’s final decision.
ISSUES PRESENTED
The issues presented are (1) whether the Equal Employment Opportunity Commission
Administrative Judge (AJ) properly dismissed Complainant’s request for a hearing, and (2) whether the Agency subjected Complainant to harassment based on race and reprisal for prior
protected EEO activity .
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Claims Representative (Bilingual), GS -11, at the Agency’s Pontiac District Office in Pontiac, Michigan.
On December 15, 2014, Compl ainant filed an EEO complaint alleging that the Agency
discriminated against him on the bas is of race ( Mexican American )2 and in reprisal for prior
protected EEO activity . In its acceptance letter, the Agency defined the accepted issues as
“[w]hether the Agency subjected Complainant to non- sexual harassment and/or hostile work
environment” on the bases of race and reprisal when:
1. on or about October 31, 2014, Complainant overheard a conference call wherein
management was attempting to solicit statements from the staff in order to label
him a bully;
2. on unspecified dates Complainant's co -workers have destroyed his work in order
to sabotage him;
3. on November 17, 2014, Complainant was notified that his request to be paid
administrative leave for the dates of November 3 -5, 2014, had been denied; and
4. beginning in November 2014 and continuing , Complainant has been assigned
walk -ins and phone duty, and other employe es are assigning appointments in his
name when he is not on the schedule for those particular assignments.
In a December 17, 2014, email to the Agency’s Area Director (AD), Complainant noted that he had met with AD on December 12, 2014, and that AD had asked him to explain why he believed
that management had subjected him to a hostile work environment. Complainant asserted that he had heard AD instruct managers to have employees write that Complainant was bullying them.
He also asserted that managers subjected him to unwelcome conduct and intimidation, used
coworkers to harass him, and failed to investigate his harassment complaints. In his affidavit, Complainant stated that he participated in EEO activity as a union representative when he helped other employees with their EEO complaints. He alleged that management allowed other employees to treat him differently because of his union and EEO activities and that other employees have made negative comments about him. He asserted that the different treatment started two or three weeks after he began his union and EEO activities. Complainant stated that he heard his name mentioned when he walked past an office on October 31, 2014, while his Operations Supervisor (S1), another Operations Supervisor (S2) , the
Assistant District Manager (ADM), and the District Manager (DM) were on a conference call with the Area Director (AD). He alleged that AD “was providing managers orders to solicit
derogatory statements from employees based on a report from ” a September 2014 visit by
representatives of the Agency’s Office of Civil Rights and Equal Opportunity Office (OCREO). According to Complainant, AD told managers that this would enable management to take action.
2 Although Complainant identified his race as “Mexican American ,” the Commission recognizes
this term as an indication of national origin rather than race.
Complainant also stated that, on August 5, 2014, a coworker (CW1) put Complainant’s name on
an appointment that was not his, complained that Complainant had left work, and, upon learning that Complainant had not left, yelled at him. He asserted that, on A ugust 15, 2014, another
coworker (CW2) “put up a slip for one of [his] claimants” and quoted the claimant as saying that Complainant did not do his job. According to Complainant, he spoke with the claimant, she denied saying that, and she submitted a writ ten statement.
In addition, Complainant asserted that ADM verbally approved his request for administrative leave for EEO purposes but later denied the leave. Complainant also asserted that managers and other employees would assign appointments to him w ithout his knowledge, that he would have
to check the monitor every 20 minutes, that this interfered with his adjudication time, and that he was the only employee treated like this. AD stated in his affidavit that two EEO investigators from the Agency’s Chicago Office
conducted training at the Pontiac facility in 2014 and that they submitted a report about the facility. According to AD, 11 employees complained to the investigators that Complainant harassed other employees, stole their lunches, was disre spectful to management and visitors, and
rarely worked. AD stated that the investigators asked him to have managers inform employees
that they should report inappropriate behavior to management and management would look into the matter. He denied Complai nant’s request to see the OCREO report because Complainant
“had no need to know.” He stated that he had a conference call with managers regarding the report, that he told them to hold a staff meeting to address the complaints against Complainant and to le t employees know that they should come forward if they felt harassed, that managers
held the meeting, and that Complainant’s name was not mentioned during the meeting. He denied telling managers to “solicit” statements about Complainant. AD stated that C omplainant
sent him emails complaining about the alleged harassment and that he directed the District Manager to investigate Complainant’s allegations. He was aware of Complainant’s EEO activity because he received monthly reports from OCREO and saw Compl ainant’s name on a few
complaints. DM similarly stated that he was aware of Complainant’s EEO activity. He estimated that Complainant had three pending EEO cases of his own and was the representative for seven other EEO cases. DM stated that he invest igated Complainant’s harassment allegations and sent
Complainant a January 22, 2015, email stating that he had found no evidence to support the allegations. He also stated that the October 31, 2014, conference call addressed the “numerous complaints” cont ained in the OCREO report and that “[t] here was no request or order to obtain
statements from the staff to labe l anyone as a bully .” After Complainant alleged that an
employee had typed incorrect information on a screen, DM spoke with the employee and determined that she was trying to provide information to help the next person who would
interview the claimant. DM stated that managers rarely approve administrative leave, that “EEO time is duty time,” and that no other employees had received administrative leave for EEO
purposes. He could not recall any instances when Complainant had unnecessary appointments assigned to him.
ADM stated that managers discussed the OCREO report and how to handle matters raised in the
report during the October 31, 2014, me eting. Like DM, ADM stated that EEO time “is
considered regular duty time” and that no employees had received leave for EEO purposes. She
denied that Complainant verbally requested administrative leave for EEO purposes. According to ADM, Complainant submitted a leave slip “for a leave period when he called into work” and should have requested sick or annual leave. She was aware that Complainant had filed prior EEO complaints and had served as a representative for other employees who filed complaints. S1, who knew that Complainant had represented other employees in EEO matters, stated that Complainant did not complain to him about alleged harassment. With respect to the October 2014 meeting, it was his understanding that, “if anyone felt threaten[ed] or bullied by [Complainant], then we would like them to document it.” According to S1, he overheard the conversation between Complainant and CW1 about putting Complainant’s name on an appointment and told CW1 not to make assignments to other people.
S2 stated that, during the October 2014 meeting, managers “ were advised that some serious
accusations had been made and in order to take action, we would need statements from the
employees making the accusations .” She did not recall that anyone had used the term “bully.”
She asserted that it was common for employees who performed “walk -in duty” to have
appointments assigned to them. She was aware of Complainant’s EEO activity.
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 .
During the hearing process, Complainant and the Agency entered a Stipulation and Protective
Order that stated, “ Information provided by [the Agency] to Complainant and his representative
that is covered by this Stipulation and Protective Order, shall not be used by Complainant or his
counsel for any purpose except as necessary for the prosecution of the instant litigation. ”
Complainant violated the Order when he used one of the Agency -produced documents as an
exhibit during an arbitration hearing on his termination from the Agency. In response to the Agency ’s Motion for Sanctions, Complainant acknowledged that he violated the Order but
argued that he needed to use the document for the arbitration. The AJ noted, however, that Complainant had deliberately blacked out the text “CONFIDENTIAL – SUBJECT TO
PROTEC TIVE ORDER” from the document when he submitted it at the arbitration hearing.
She also noted that he had not requested a modification of the Protective Order to enable him to use the document. Accordingly, the AJ granted the Agency’s Motion for Sanctions, dismissed Complainant’s hearing request, and remanded the case to the Agency for the issuance of a final decision pursuant to 29 C.F.R. § 1614.110(b).
In its final decision, the Agency found that Complainant did not show that the Agency subjected
him to unlawful discrimination. The Agency concluded that Complainant belonged to protected
classes and was subjected to unwelcome conduct. The Agency also concluded that Complainant did not show that the conduct was related to his race. In addition, the A gency stated that
Complainant’s actions as a union representative for other employees’ EEO complaints did not
constitute protected EEO activity. The Agency concluded, however, that “ the record shows that
Complainant was involved in numerous EEO complaints of his own,” that “Complainant’s
previous complaint was resolved two to five months prior to the adverse actions in the instant
complaint ,” and that his “prior EEO activity was recent enough to create a nexus between the
alleged conduct and his protected activity.” With respect to the October 31, 2014, meeting, the
Agency stated that “management merely holding a meeting does not affect Complainant’s
employment” and was not severe or pervasive. Similarly, the Agency concluded that, even if
CW2 entered err oneous information into the VIP system, such conduct was not severe or
pervasive. In addition, the Agency stated that, absent evidence of discriminatory intent, neither
the denial of leave nor the routine assignment of duties constitutes harassment. The Agency also stated that CW1’s actions were not severe or pervasive. The Agency concluded that the incidents at issue, even when considered as a whole and assumed to be true, did not rise to the level of a hostile work environment. Further, the Agency f ound that “management explained that the alleged harassment either did not
occur or was not severe or pervasive.” With respect to Complainant’s claim that management solicited complaints against him, the Agency stated that the Chicago OCREO had received complaints about Complainant and that managers asked employees to speak to them directly. In
addition, the Agency noted that DM stated that he investigated Complainant’s claim that CW2 tried to sabotage his work and that CW2 was only trying to input inform ation that would help the
person who interviewed the claimant. The Agency also stated that administrative leave was not intended for EEO work, that managers redistributed work when an employee was out, that S1 spoke with CW1 after Complainant told him tha t CW1 had assigned him work and yelled at him,
and that Complainant has not pointed to subsequent problems with CW1.
CONTENTIONS ON APPEAL
On appeal, Complainant states that the Agency terminated his employment illegally and that he
violated the Stipulation and Protective Order “for the health and safety of [his] family.” He
submits a copy of an arbitrator’s decision overturning the termination.
In response, the Agency argues that the AJ properly dismissed Complainant’s hearing request as
a sanction for violating the Protective Order. The Agency also argues that Complainant did not
establish that the Agency subjected him to a hostile work environment based on race or reprisal.
STANDARD OF REVIEW
As this is an appeal from a decision issued without a hearing, pursuant to 29 C.F.R. § 1614.110(b), the Agency's decision is subject to de novo review by the Commission. 29 C.F.R.
§ 1614.405(a). See
Equal Employment Opportunity Management Directive for 29 C.F.R. Part
1614 , at Chapter 9, § VI.A. (Au g. 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
1. Dismissal of Hearing Request
The Commission ’s regulations afford broad authority to A dministrative Judge s for the conduct of
hearings, including the authority to issue protective orders not to disclose information and to sanction a party for failure without good cause shown to comply fully with an order. See
C.F.R. § 1614.109; EEO -MD-110, Chap. 7, § III.D.; Complainant v. Dep’ t of Transp. , EEOC
Appeal No. 0120123005 (June 13, 2014) (citing Brannon -Winters v. Dep’ t of t he Navy , EEOC
Appeal No. 01A51549 (Mar. 28, 2006)). Where a party fails to comply with an order of an AJ,
the AJ may, as appropriate, take action against the non- complying party pursuant to 29 C.F.R.
§ 1614.109(f)(3). An AJ may: (1) draw an adverse infer ence that the requested information
would have reflected unfavorably on the non- complying party; (2) consider the requested
information to be established in favor of the opposing party; (3) exclude other evidence offered by the non- complying party; (4) iss ue a decision fully or partially in favor of the opposing party;
or (5) take other action deemed appropriate.
Id.; EEO -MD-110, Chap. 7, § III.D.10.
Upon review, we find that it was not an abuse of discretion to dismiss Complainant’s hearing
request. C omplainant was aware of the Agency’s Motion for Sanctions and had an opportunity
to respond to the Motion. He acknowledges that he violated the Stipulation and Protective Order . As the AJ noted, Complainant did not request a modification of the Order. I nstead, he
intentionally violated the Order. We find that the AJ properly dismissed Complainant’s hearing request.
Harassment
In Harris v. Forklift Systems, Inc.
, 510 U.S. 17, 21 (1993), the Supreme Court reaffirmed the
holding of Meritor Savings Ba nk v. Vinson , 477 U.S. 57, 67 (1986), that harassment is
actionable if it is “ sufficiently severe or pervasive to alter the conditions of [complainant ’s]
employment and create a hostile or abusive working environment.” 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 , 510
U.S. at 21- 22. Whether the harassment is sufficiently severe to t rigger a violation of Title VII
must be determined by looking at all 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. ”
Id. at 23.
To establish a claim of harassment, Complainant must show that: (1) he is a member of a statutorily protected class; (2) he was subjected to unwelcome verbal or physical conduct
involving the protected class; (3) the harassment complained of was based on the protected class;
(4) the harassment had the purpose or effect of unreasonably interfering with the work environment and/or creating an intimidating, hostile, or offensive work environment; and (5) there is a basis for imputing liability to the employer . Humphrey v. U.S. Postal Serv.,
EEOC
Appeal No. 01965238 (Oct. 16, 1998); 29 C.F.R. § 1604.11. The harasser ’s conduct should be
evaluated from 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 (Mar. 8,
1994) (Enforcement Guidance on Harris ). The evaluation “ requires careful consideration of the
social context in which particular behavior occurs and is experienced by its target. ” Oncale v.
Sundowner Offshore Servs., Inc. , 523 U.S. 75, 81 (1998).
Having considered the evidence of record, we find that Complainant has not shown that the Agency subjected him to harassment based on race/national origin or reprisal. Complainant has established t hat he is a member of protected classes and that he was subjected
to unwelcome conduct. He participated in protected EEO activity when he assisted other employees with their EEO complaints and when he filed his own EEO complaints.
EEOC
Enforcement Guidance on Retaliation and Related Issues , EEOC Notice No. 915.004, at II.A.3.
(Aug. 25, 2016) (anti-retaliation protections cover individuals “who participate in the EEO
process in any way, including as a complainant, representative, or witness for any side ”);
Milhado v. Dep’t of the Army , EEOC Request No. 05870174 (July 2, 1987) (individual whose
union activities included the representation of employees in EEO cases stated a claim of reprisal). The Agency, in its final decision, acknowledged that there was a close temporal proximity between Complainant’s prior EEO complaint and the actions at issue here.
We find that Complainant has not established that the actions at issue here occurred because of his race/national origin or prior EEO activity. AD stated that employees complained to EEO investigators that Complainant had harassed them and that the investigators asked AD to have managers tell employees to report inappropriate behavior. Other Agency managers also stated that October 31, 2014, meeting addres sed the OCREO report, that the report contained
“numerous complaints” and “serious accusations,” and that managers were advised to have employees make statements documenting accusations. S1 stated that he overheard the conversation between Complainant and CW1 and told CW1 not to make assignments to other people. DM stated that CW2 was trying to provide information to help the next person who
would interview a claimant, and S2 stated that it was common for employees who performed walk -in duties to have appointments assigned to them. DM and ADM stated that time spent on
EEO matters is regular duty time and that employees do not receive administrative leave for such purposes.
Complainant has not shown that the managers’ explanations are unworthy of credenc e or that
considerations of race/national origin or reprisal more likely motivated the Agency’s actions. Although the temporal proximity between Complainant’s protected EEO activity and the incidents at issue raises an inference of reprisal, the evidence is insufficient to support a determination that the incidents occurred because Complainant engaged in EEO activity.
Similarly, the evidence does not establish that the incidents occurred because of his race/national
origin. Complainant’s bare allegations , in the absence of supporting evidence, do not establish
the existence of race/national origin discrimination or reprisal.
Furthermore, we find that a finding of discriminatory harassment is precluded based on our
determination that Complainant did not show that the Agency’s actions were motivated by discriminatory or retaliatory animus. See Oakley v. U.S. Postal Serv.
, EEOC Appeal No.
01982923 (Sept. 21, 2000). Accordingly, we find that Complainant has not demonstrated that the Agency subjected him to harassment based on race/national origin or protected EEO activity.
CONCLUSION
Based on a thorough review of the record and the contentions on appea l, including those not
specifically addressed herein, we AFIRM the Agency’s final decision and its finding of no
discrimination.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0617)
The Commission may, in its discretion, reconsider the decision in thi s 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 recei pt 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 d ays 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 als o 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 w ill 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 State s 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 per son 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 Fe deral Operations
February 15, 2019
Date | [
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"Humphrey v. U.S. Postal Serv., EEOC Appeal No. 01965238 (Oct. 16, 1998)",
"Milhado v. Dep’t of the Army , EEOC Request No. 05870174 (July 2, 1987)",
"Oakley v. U.S. Postal Serv., EEOC Appeal No. 01982923 (Sept. 21, 2000)",
"51... | [
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131 | https://www.eeoc.gov/sites/default/files/migrated_files/decisions/01a53230.txt | 01a53230.txt | TXT | text/plain | 7,934 | Arthur King v. United States Postal Service 01A53230 July 20, 2005 . Arthur King, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency. | July 20, 2005 | Appeal Number: 01A53230
Case Facts:
Legal Analysis:
Upon review, the Commission finds that complainant's complaint was
improperly dismissed pursuant to 29 C.F.R. § 1614.107(a) (1) on the
grounds that it addresses the same matter that was raised in a prior
EEO complaint.
On October 5, 2004, complainant contacted an EEO Counselor. The EEO
Counselor's Report reflects that complainant underwent EEO counseling on
the issue that he was subjected to discrimination on the basis of reprisal
for prior EEO activity when in early 2004, he was not retrained on P S
Form 3189 completions, but that on August 23, 2004, his supervisors
retrained two carriers on PS Form 3189 completions. Informal efforts
to resolve complainant's concerns were unsuccessful.
On January 6, 2005, complainant filed the instant formal complaint.
Therein, complainant claimed that in early 2004, he filed a complaint
with EEO regarding not being retrained on PS 3189. Complainant further
stated that on August 23, 2004, two co-workers were retrained.
On February 11, 2005, the agency issued a final decision. Therein,
the agency determined that the instant complaint was comprised of two
claims, that were identified in the following fashion:
1. In early 2004, complainant was not retrained on PS Form 3189.
2. On August 23, 2004, [Supervisors A and B] retrained two carriers on
completing PS Form 3189 (Change of Schedule for Personal Convenience).
The agency dismissed claim (1) on the grounds of untimely EEO Counselor
contact. The agency also dismissed claim (1) on the alternative grounds
that it addresses the same matter that complainant raised in a previously
filed EEO complaint, which was the subject of a March 2004 final agency
decision that dismissed the prior complaint for failure to state a claim.
The record does not contain a copy of the prior complaint.
The agency dismissed claim (2) on the grounds of untimely EEO Counselor
contact. The agency found that complainant initiated EEO Counselor
contact on October 5, 2004, and that this contact was more than forty-five
days from the date of the alleged discriminatory action of August 23,
2004.
On appeal, complainant acknowledged that he filed a formal complaint on
the issue of failure to be retrained. Specifically, complainant stated
that in thefirst one, I had cited that retraining was denied to me up
to that time and that no other employee had asked to be retrained on the
PS 3189 other than myself. Regarding claim (2), complainant states
that on August 23, 2004, an agency Manager arranged for retraining of
two named co-workers. Complainant argues that agency management should
have been aware of my previous EEO and that complainant had requested
them to arrange my retraining back in 2003.
Complainant further notes that the alleged discriminatory action cited
in claim (2) was fewer than forty-five days from his initial October 5,
2004 EEO Counselor contact.
Claim (1)
The agency dismissed claim (1) on the grounds that it addresses the same
matter raised in a prior complaint. The Commission notes that a copy
of the prior complaint is not in the record. However, in his formal
complaint, complainant expressly acknowledged that in early 2004, he
filed an EEO complaint regarding not being trained on PS Form 3189.
Moreover, by his own admission on appeal, complainant states that he
filed a prior complaint on this matter.
Final Decision:
Accordingly, the agency's decision to dismiss claim (1) on the grounds that it raises the same matter addressed in a prior EEO complaint is AFFIRMED. | Arthur King v. United States Postal Service
01A53230
July 20, 2005
.
Arthur King,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A53230
Agency No. 4F-926-0018-05
DECISION
Upon review, the Commission finds that complainant's complaint was
improperly dismissed pursuant to 29 C.F.R. § 1614.107(a) (1) on the
grounds that it addresses the same matter that was raised in a prior
EEO complaint.
On October 5, 2004, complainant contacted an EEO Counselor. The EEO
Counselor's Report reflects that complainant underwent EEO counseling on
the issue that he was subjected to discrimination on the basis of reprisal
for prior EEO activity when in early 2004, he was not retrained on P S
Form 3189 completions, but that on August 23, 2004, his supervisors
retrained two carriers on PS Form 3189 completions. Informal efforts
to resolve complainant's concerns were unsuccessful.
On January 6, 2005, complainant filed the instant formal complaint.
Therein, complainant claimed that in early 2004, he filed a complaint
with EEO regarding not being retrained on PS 3189. Complainant further
stated that on August 23, 2004, two co-workers were retrained.
On February 11, 2005, the agency issued a final decision. Therein,
the agency determined that the instant complaint was comprised of two
claims, that were identified in the following fashion:
1. In early 2004, complainant was not retrained on PS Form 3189.
2. On August 23, 2004, [Supervisors A and B] retrained two carriers on
completing PS Form 3189 (Change of Schedule for Personal Convenience).
The agency dismissed claim (1) on the grounds of untimely EEO Counselor
contact. The agency also dismissed claim (1) on the alternative grounds
that it addresses the same matter that complainant raised in a previously
filed EEO complaint, which was the subject of a March 2004 final agency
decision that dismissed the prior complaint for failure to state a claim.
The record does not contain a copy of the prior complaint.
The agency dismissed claim (2) on the grounds of untimely EEO Counselor
contact. The agency found that complainant initiated EEO Counselor
contact on October 5, 2004, and that this contact was more than forty-five
days from the date of the alleged discriminatory action of August 23,
2004.
On appeal, complainant acknowledged that he filed a formal complaint on
the issue of failure to be retrained. Specifically, complainant stated
that in thefirst one, I had cited that retraining was denied to me up
to that time and that no other employee had asked to be retrained on the
PS 3189 other than myself. Regarding claim (2), complainant states
that on August 23, 2004, an agency Manager arranged for retraining of
two named co-workers. Complainant argues that agency management should
have been aware of my previous EEO and that complainant had requested
them to arrange my retraining back in 2003.
Complainant further notes that the alleged discriminatory action cited
in claim (2) was fewer than forty-five days from his initial October 5,
2004 EEO Counselor contact.
Claim (1)
The agency dismissed claim (1) on the grounds that it addresses the same
matter raised in a prior complaint. The Commission notes that a copy
of the prior complaint is not in the record. However, in his formal
complaint, complainant expressly acknowledged that in early 2004, he
filed an EEO complaint regarding not being trained on PS Form 3189.
Moreover, by his own admission on appeal, complainant states that he
filed a prior complaint on this matter. Accordingly, the agency's
decision to dismiss claim (1) on the grounds that it raises the same
matter addressed in a prior EEO complaint is AFFIRMED.
Because we affirm the agency's dismissal of this claim for the reason
stated herein, we find it unnecessary to address alternative dismissal
grounds.
Claim (2)
The agency dismissed claim (2) on the grounds of untimely EEO contact.
However, the Commission determines that this claim is more properly
analyzed in terms of whether it addresses the same matter raised in a
prior EEO complaint. The Commission finds that claim (2) is merely an
elaboration of the matter that was raised in the prior identified EEO
complaint, as noted above, in our discussion of claim (1). The agency's
dismissal of this claim is therefore AFFIRMED for the reasons set
forth herein.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
The Commission may, in its discretion, reconsider the decision in this
case if the complainant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. The appellate decision involved a clearly erroneous interpretation
of material fact or law; or
2. The appellate decision will have a substantial impact on the policies,
practices, or operations of the agency.
Requests to reconsider, with supporting statement or brief, must be filed
with the Office of Federal Operations (OFO) within thirty (30) calendar
days of receipt of this decision or within twenty (20) calendar days of
receipt of another party's timely request for reconsideration. See 29
C.F.R. § 1614.405; Equal Employment Opportunity Management Directive for
29 C.F.R. Part 1614 (EEO MD-110), 9-18 (November 9, 1999). All requests
and arguments must be submitted to the Director, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. In the absence of a legible postmark, the
request to reconsider shall be deemed timely filed if it is received by
mail within five days of the expiration of the applicable filing period.
See 29 C.F.R. § 1614.604. The request or opposition must also include
proof of service on the other party.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely, unless extenuating circumstances
prevented the timely filing of the request. Any supporting documentation
must be submitted with your request for reconsideration. The Commission
will consider requests for reconsideration filed after the deadline only
in very limited circumstances. See 29 C.F.R. § 1614.604(c).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S0900)
You have the right to file a civil action in an appropriate United States
District Court within ninety (90) calendar days from the date that you
receive this decision. If you file a civil action, you must name as
the defendant in the complaint the person who is the official agency head
or department head, identifying that person by his or her full name and
official title. Failure to do so may result in the dismissal of your
case in court. "Agency" or "department" means the national organization,
and not the local office, facility or department in which you work. If you
file a request to reconsider and also file a civil action, filing a civil
action will terminate the administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z1199)
If you decide to file a civil action, and if you do not have or cannot
afford the services of an attorney, you may request that the Court appoint
an attorney to represent you and that the Court permit you to file the
action without payment of fees, costs, or other security. See Title VII
of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq.;
the Rehabilitation Act of 1973, as amended, 29 U.S.C. §§ 791, 794(c).
The grant or denial of the request is within the sole discretion of
the Court. Filing a request for an attorney does not extend your time
in which to file a civil action. Both the request and the civil action
must be filed within the time limits as stated in the paragraph above
("Right to File A Civil Action").
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
July 20, 2005
__________________
Date
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132 | https://www.eeoc.gov/sites/default/files/migrated_files/decisions/01A11388_r.txt | 01A11388_r.txt | TXT | text/plain | 6,833 | Mark C. Wilhelm v. Department of Veterans Affairs 01A11388 June 27, 2001 . Mark C. Wilhelm, Complainant, v. Anthony J. Principi, Secretary, Department of Veterans Affairs, Agency. | June 27, 2001 | Appeal Number: 01A11388
Case Facts:
Legal Analysis:
Upon review, the Commission finds that the complaint was properly
dismissed pursuant to 29 C.F.R. § 1614.107(a)(2), for untimely EEO
Counselor contact. The EEO Counselor's Report shows that complainant
sought EEO counseling on June 26, 2000, claiming that he had been
discriminated against on the bases of sex when he was subject to
harassment and forced to resign in March 2000. Subsequently, complainant
filed a formal complaint claiming that he had been discriminated against
on the bases of sex, and military status<1> when he was harassed from
October 1997 to March 2000, and was forced to resign in March 2000.<2>
The record shows that by letter dated June 13, 2000, complainant
requested that a security officer at the agency's EEO office address the
discrimination and harassment that he purportedly suffered during agency
employment. By letter dated June 22, 2000, the Regional EEO Officer
responded to complainant's letter and advised him to seek EEO counseling.
By letter dated June 28, 2000, complainant informed the agency that he had
contacted his designated EEO contact point in March 2000. He further
claimed that this alleged point of contact had accepted his complaint.
Complainant also stated that he could not explain why no one at the EEO
office knew his alleged EEO point of contact.
The agency issued a final decision dismissing the complaint for untimely
EEO Counselor contact. The agency determined that complainant's initial
EEO Counselor contact occurred on June 26, 2000, and was beyond the
45-day time limit.
On appeal, complainant states that the reason for the delay was simply
that he was in the process of returning to active duty in the Navy and
that he was considerably busy at that time.
As a preliminary matter, we find that complainant contacted an EEO
Counselor on June 13, 2000, when he sent a letter to the EEO office, and
not on June 26, 2000, as determined by the agency. Although he claims
that he contacted his EEO point of contact in March 2000, complainant
has offered no persuasive evidence to support this bare contention.
The record discloses that the most recent alleged discriminatory event
occurred in March 2000, when complainant resigned. However, complainant
did not initiate contact with an EEO Counselor until June 13, 2000,
which is seventy-four days later. His contact was beyond the forty-five
(45) day limitation period. On appeal, no persuasive arguments or
evidence have been presented to warrant an extension of the time limit
for initiating EEO contact.
Final Decision:
Accordingly, the agency's final decision dismissing the complaint is AFFIRMED. | Mark C. Wilhelm v. Department of Veterans Affairs
01A11388
June 27, 2001
.
Mark C. Wilhelm,
Complainant,
v.
Anthony J. Principi,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 01A11388
DECISION
Upon review, the Commission finds that the complaint was properly
dismissed pursuant to 29 C.F.R. § 1614.107(a)(2), for untimely EEO
Counselor contact. The EEO Counselor's Report shows that complainant
sought EEO counseling on June 26, 2000, claiming that he had been
discriminated against on the bases of sex when he was subject to
harassment and forced to resign in March 2000. Subsequently, complainant
filed a formal complaint claiming that he had been discriminated against
on the bases of sex, and military status<1> when he was harassed from
October 1997 to March 2000, and was forced to resign in March 2000.<2>
The record shows that by letter dated June 13, 2000, complainant
requested that a security officer at the agency's EEO office address the
discrimination and harassment that he purportedly suffered during agency
employment. By letter dated June 22, 2000, the Regional EEO Officer
responded to complainant's letter and advised him to seek EEO counseling.
By letter dated June 28, 2000, complainant informed the agency that he had
contacted his designated EEO contact point in March 2000. He further
claimed that this alleged point of contact had accepted his complaint.
Complainant also stated that he could not explain why no one at the EEO
office knew his alleged EEO point of contact.
The agency issued a final decision dismissing the complaint for untimely
EEO Counselor contact. The agency determined that complainant's initial
EEO Counselor contact occurred on June 26, 2000, and was beyond the
45-day time limit.
On appeal, complainant states that the reason for the delay was simply
that he was in the process of returning to active duty in the Navy and
that he was considerably busy at that time.
As a preliminary matter, we find that complainant contacted an EEO
Counselor on June 13, 2000, when he sent a letter to the EEO office, and
not on June 26, 2000, as determined by the agency. Although he claims
that he contacted his EEO point of contact in March 2000, complainant
has offered no persuasive evidence to support this bare contention.
The record discloses that the most recent alleged discriminatory event
occurred in March 2000, when complainant resigned. However, complainant
did not initiate contact with an EEO Counselor until June 13, 2000,
which is seventy-four days later. His contact was beyond the forty-five
(45) day limitation period. On appeal, no persuasive arguments or
evidence have been presented to warrant an extension of the time limit
for initiating EEO contact. Accordingly, the agency's final decision
dismissing the complaint 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
June 27, 2001
__________________
Date
1 Military status may not be claimed as a basis of discrimination under
EEOC Regulations.
2 The date of the resignation is not contained in the record.
For purposes of considering whether complainant's EEO Counselor contact
was timely, the Commission will presume that the resignation date was
the latest possible, March 31, 2000.
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133 | https://www.eeoc.gov/sites/default/files/migrated_files/decisions/0120101460.txt | 0120101460.txt | TXT | text/plain | 10,550 | Jimmy Campoverde, Complainant, v. Robert M. Gates, Secretary, Department of Defense, (Defense Intelligence Agency), Agency. | January 21, 2010 | Appeal Number: 0120101460
Background:
The record indicated that Complainant filed his complaint alleging discrimination based on race (Hispanic), national origin (Ecuador), age (over 40), and in reprisal for prior EEO activity when on March 20, 2009, he became aware that his position and job title would change from Program Manager (IT) to an IT Specialist (Internet), without his prior knowledge or consent, which became effective on July 19, 2009. The record indicates that Complainant contacted an EEO Counselor with regard to his complaint on October 1, 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 21, 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 Complainant filed his complaint alleging discrimination based on race (Hispanic), national origin (Ecuador), age (over 40), and in reprisal for prior EEO activity when on March 20, 2009, he became aware that his position and job title would change from Program Manager (IT) to an IT Specialist (Internet), without his prior knowledge or consent, which became effective on July 19, 2009. The record indicates that Complainant contacted an EEO Counselor with regard to his complaint on October 1, 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.
The record indicates that on March 2, 2009, Complainant was hired and began working as an IT Project Manager, IA-2210, Pay Band 3, at the Agency's Royal Air Force Base, RAF Molesworth in England. On appeal, Complainant indicates that thereafter, on March 20, 2009, his supervisor told him that he was assigned to do web development, i.e., IT Specialist, which was a different position and lesser job duties than what he was hired for, i.e., IT Project Manager. Complainant also indicates that on May 13, 2009, he contacted the Agency Office of Inspector General (IG) to initiate a complaint of unfair hiring practices in which, amongst other things, he alleged that he was not given the position and duties that he was hired into at RAF Molesworth. Complainant's March 26, 2010, Appeal Brief (Complainant's Brief), at 3.
Complainant contends that he untimely contacted an EEO Counselor because he was not aware of the 45-day time limit. In response, the Agency submits that on June 9, 2009, the Deputy Chief of Equal Opportunity (EO) traveled to Molesworth, England, to give EEO training to its employees, including Complainant. The Deputy Chief of EO's April 26, 2010, Declaration (EO's Declation). The Agency submits the roster for the June 9, 2009 training wherein which Complainant signed his name to indicate his attendance during the training. EO's Declaration, Exhibit (Ex.) 2. The Agency also submits a copy of the slides, which were shown to the attendees, including Complainant, during the June 9, 2009, training, which explicitly indicated the 45-day time limit to contact an EEO Counselor, including EEO contact information, i.e., the phone numbers, electronic mail address and web site. EO's Declaration, Ex. 1, Slides 30, 33, and 34. On appeal, Complainant does not dispute the Deputy Chief of EO's foregoing statements.
The Commission has adopted a "reasonable suspicion" standard (as opposed to a "supportive facts" standard) to determine when the limitation period is triggered under the EEOC Regulations. See 29 C.F.R. § 1614.105(a)(2); Ball v. United States Postal Service, EEOC Request No. 05880247 (July 6, 1988). Thus, the limitations period is not triggered until a complainant reasonably should have suspected discrimination, but before all the facts that would support a charge of discrimination have become apparent. In the instant case, despite Complainant's contentions on appeal, after a review of the record, we find that Complainant reasonably should have suspected discrimination concerning the alleged reassignment on May 13, 2009, when he complained about the same to the Agency Office of Inspector General (IG).
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). Here, we find that Complainant's May 13, 2009, contact, described above, did not constitute EEO Counselor contact under the regulations since the IG was not an Agency official logically connected to the EEO process. Also, there is no evidence that the foregoing IG contact was intended by Complainant to begin the EEO process. Despite Complainant's attempts to resolve the matter via Agency officials, including the IG, described above, it is noted that 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).
Complainant also contends that the Agency should also be equitably estopped from asserting Complainant's untimely EEO contact. However, Complainant admits that his supervisor, identified in the complaint, on his own initiative, arranged Complainant's travel to the Agency's Headquarters in Washington, D.C. on August 25-31, 2009, to see the Agency Security and to talk to individuals at the Agency HR and EO Office about his concerns about employment issues in RAF Molesworth. However, Complainant came back to England without meeting with EO Office. Although Complainant indicates that while he was at the Agency's Headquarters in Washington, D.C., he talked to the Team Chief, Employee Management Relations in the Benefits and Service Branch, he does not indicate that he phoned or attempted to contact the Agency EO Office or exhibited his intent to begin the EEO process to the Team Chief, described above. Complainant's March 26, 2010, Appeal Brief, at 5. Complainant admits that he only raised Human Resources issues, and not EEO issues, regarding his position to the Team Chief. Complainant's March 24, 2010, Declaration, at 5. It was only when he came back from the trip, Complainant decided to contact the identified EEO Counselor, i.e., the Deputy Chief of EO, via electronic message in October 2009.
Complainant failed to persuasively show that he attempted to begin the EEO complaint process prior to his initial contact date on October 1, 2009, or that he dissuaded from making such contact any earlier by agency officials. Based on the foregoing, we find that Complainant failed to provide adequate justification to warrant an extension of the time limit for initiating EEO contact.
Final Decision:
Accordingly, the Agency's final decision is AFFIRMED. | Jimmy Campoverde,
Complainant,
v.
Robert M. Gates,
Secretary,
Department of Defense,
(Defense Intelligence Agency),
Agency.
Appeal No. 0120101460
Agency No. DIA-2010-00010
DECISION
Upon review, the Commission finds that the Agency's decision dated January 21, 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 Complainant filed his complaint alleging discrimination based on race (Hispanic), national origin (Ecuador), age (over 40), and in reprisal for prior EEO activity when on March 20, 2009, he became aware that his position and job title would change from Program Manager (IT) to an IT Specialist (Internet), without his prior knowledge or consent, which became effective on July 19, 2009. The record indicates that Complainant contacted an EEO Counselor with regard to his complaint on October 1, 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.
The record indicates that on March 2, 2009, Complainant was hired and began working as an IT Project Manager, IA-2210, Pay Band 3, at the Agency's Royal Air Force Base, RAF Molesworth in England. On appeal, Complainant indicates that thereafter, on March 20, 2009, his supervisor told him that he was assigned to do web development, i.e., IT Specialist, which was a different position and lesser job duties than what he was hired for, i.e., IT Project Manager. Complainant also indicates that on May 13, 2009, he contacted the Agency Office of Inspector General (IG) to initiate a complaint of unfair hiring practices in which, amongst other things, he alleged that he was not given the position and duties that he was hired into at RAF Molesworth. Complainant's March 26, 2010, Appeal Brief (Complainant's Brief), at 3.
Complainant contends that he untimely contacted an EEO Counselor because he was not aware of the 45-day time limit. In response, the Agency submits that on June 9, 2009, the Deputy Chief of Equal Opportunity (EO) traveled to Molesworth, England, to give EEO training to its employees, including Complainant. The Deputy Chief of EO's April 26, 2010, Declaration (EO's Declation). The Agency submits the roster for the June 9, 2009 training wherein which Complainant signed his name to indicate his attendance during the training. EO's Declaration, Exhibit (Ex.) 2. The Agency also submits a copy of the slides, which were shown to the attendees, including Complainant, during the June 9, 2009, training, which explicitly indicated the 45-day time limit to contact an EEO Counselor, including EEO contact information, i.e., the phone numbers, electronic mail address and web site. EO's Declaration, Ex. 1, Slides 30, 33, and 34. On appeal, Complainant does not dispute the Deputy Chief of EO's foregoing statements.
The Commission has adopted a "reasonable suspicion" standard (as opposed to a "supportive facts" standard) to determine when the limitation period is triggered under the EEOC Regulations. See 29 C.F.R. § 1614.105(a)(2); Ball v. United States Postal Service, EEOC Request No. 05880247 (July 6, 1988). Thus, the limitations period is not triggered until a complainant reasonably should have suspected discrimination, but before all the facts that would support a charge of discrimination have become apparent. In the instant case, despite Complainant's contentions on appeal, after a review of the record, we find that Complainant reasonably should have suspected discrimination concerning the alleged reassignment on May 13, 2009, when he complained about the same to the Agency Office of Inspector General (IG).
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). Here, we find that Complainant's May 13, 2009, contact, described above, did not constitute EEO Counselor contact under the regulations since the IG was not an Agency official logically connected to the EEO process. Also, there is no evidence that the foregoing IG contact was intended by Complainant to begin the EEO process. Despite Complainant's attempts to resolve the matter via Agency officials, including the IG, described above, it is noted that 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).
Complainant also contends that the Agency should also be equitably estopped from asserting Complainant's untimely EEO contact. However, Complainant admits that his supervisor, identified in the complaint, on his own initiative, arranged Complainant's travel to the Agency's Headquarters in Washington, D.C. on August 25-31, 2009, to see the Agency Security and to talk to individuals at the Agency HR and EO Office about his concerns about employment issues in RAF Molesworth. However, Complainant came back to England without meeting with EO Office. Although Complainant indicates that while he was at the Agency's Headquarters in Washington, D.C., he talked to the Team Chief, Employee Management Relations in the Benefits and Service Branch, he does not indicate that he phoned or attempted to contact the Agency EO Office or exhibited his intent to begin the EEO process to the Team Chief, described above. Complainant's March 26, 2010, Appeal Brief, at 5. Complainant admits that he only raised Human Resources issues, and not EEO issues, regarding his position to the Team Chief. Complainant's March 24, 2010, Declaration, at 5. It was only when he came back from the trip, Complainant decided to contact the identified EEO Counselor, i.e., the Deputy Chief of EO, via electronic message in October 2009.
Complainant failed to persuasively show that he attempted to begin the EEO complaint process prior to his initial contact date on October 1, 2009, or that he dissuaded from making such contact any earlier by agency officials. Based on the foregoing, we find that Complainant failed to provide adequate justification to warrant an extension of the time limit for initiating EEO contact.
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
| [
"Ball v. United States Postal Service, EEOC Request No. 05880247 (July 6, 1988)",
"Allen v. United States Postal Service, EEOC Request No. 05950933 (July 9, 1996)",
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134 | https://www.eeoc.gov/sites/default/files/migrated_files/decisions/0120122187.txt | 0120122187.txt | TXT | text/plain | 9,971 | Katherine M. Smith, Complainant, v. Martha N. Johnson, Administrator, General Services Administration, Agency. | March 22, 2012 | Appeal Number: 0120122187
Background:
At the time of events giving rise to this complaint Complainant worked as a Management Assistant at the Agency's Public Buildings Service, Real Estate Acquisition Division in San Francisco, California. On February 17, 2012, she filed a formal complaint alleging that the Agency discriminated against her based on her race (White), national origin (Irish/German), sex (female), religion (Christianity), disability, age (51), and reprisal for prior protected EEO activity when she was not provided proper EEO counseling services by EEO Counselor 1 [this occurred around December 2011].1
The record reflects that in December 2011 Complainant initiated contact with an EEO counselor on case 2 (Agency No. 12-R9-PBS-KMS-03) alleging that in her prior EEO case 1 (Agency No. 11-R9-PBS-KMS-28) she was not properly counseled by EEO Counselor 1. In January 2012 Complainant initiated contact with an EEO counselor on case 3, the case before us. She raised a variety of claims, none about EEO Counselor 1. On February 17, 2012, the Agency mailed Complainant a Notice of Right to File a Formal Complaint of Discrimination for case 3. Complainant filed her EEO complaint on February 28, 2012, alleging the claim about Counselor 1 and no other issues.
The Agency dismissed the complaint in case 3 for failure to timely file the complaint. The Agency found that Complainant received the Notice of Right to File a Discrimination Complaint on case 2 on January 5, 2012, and did not file a formal complaint in case 2. The Agency found that Complainant could not use case 3 to file a timely complaint on case 2 on the same issue. The only documentation on when the Notice of Right to File a Formal Complaint of Discrimination on case 2 was provided to Complainant are brief references in the case 2 counselor report that the notice was issued on January 5, 2012.
The Agency also dismissed the complaint in case 3 on the grounds that the claim about EEO Counselor 1 was not raised with the EEO counselor on case 3. 29 C.F.R. § 1614.107(a)(2).2
On appeal the parties make no comment. | Katherine M. Smith,
Complainant,
v.
Martha N. Johnson,
Administrator,
General Services Administration,
Agency.
Appeal No. 0120122187
Agency No. 12-R9-PBS-KMS-07
DECISION
Complainant filed a timely appeal with this Commission from a final Agency decision (FAD) dated March 22, 2012, dismissing her complaint of unlawful employment discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. § 2000e et seq., Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq.
BACKGROUND
At the time of events giving rise to this complaint Complainant worked as a Management Assistant at the Agency's Public Buildings Service, Real Estate Acquisition Division in San Francisco, California. On February 17, 2012, she filed a formal complaint alleging that the Agency discriminated against her based on her race (White), national origin (Irish/German), sex (female), religion (Christianity), disability, age (51), and reprisal for prior protected EEO activity when she was not provided proper EEO counseling services by EEO Counselor 1 [this occurred around December 2011].1
The record reflects that in December 2011 Complainant initiated contact with an EEO counselor on case 2 (Agency No. 12-R9-PBS-KMS-03) alleging that in her prior EEO case 1 (Agency No. 11-R9-PBS-KMS-28) she was not properly counseled by EEO Counselor 1. In January 2012 Complainant initiated contact with an EEO counselor on case 3, the case before us. She raised a variety of claims, none about EEO Counselor 1. On February 17, 2012, the Agency mailed Complainant a Notice of Right to File a Formal Complaint of Discrimination for case 3. Complainant filed her EEO complaint on February 28, 2012, alleging the claim about Counselor 1 and no other issues.
The Agency dismissed the complaint in case 3 for failure to timely file the complaint. The Agency found that Complainant received the Notice of Right to File a Discrimination Complaint on case 2 on January 5, 2012, and did not file a formal complaint in case 2. The Agency found that Complainant could not use case 3 to file a timely complaint on case 2 on the same issue. The only documentation on when the Notice of Right to File a Formal Complaint of Discrimination on case 2 was provided to Complainant are brief references in the case 2 counselor report that the notice was issued on January 5, 2012.
The Agency also dismissed the complaint in case 3 on the grounds that the claim about EEO Counselor 1 was not raised with the EEO counselor on case 3. 29 C.F.R. § 1614.107(a)(2).2
On appeal the parties make no comment.
ANALYSIS AND FINDINGS
The regulation set forth at 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, in turn, requires the filing of a formal complaint within fifteen (15) days of receiving the notice of the right to do so.
In dismissing the complaint in case 3 the Agency determined that on January 5, 2012, Complainant was issued the Notice of Right to File a Formal Complaint on case 2 and did not file a formal complaint but instead improperly used case 3 to file a formal complaint on the same issue raised in case 2. Even if we were to accept the Agency's general premise above the record contains insufficient documentation to affirm a finding that a complaint about Counselor 1's improper counseling was untimely filed. The record does not contain the Notice of Right to File a Complaint on case 2, nor does it contain any evidence of when Complainant received the notice.
We find that the Agency properly dismissed the complaint in case 3 on the grounds that it was not brought to the attention of the EEO counselor on that case and was not like or related to the matter that was brought to the attention of that EEO counselor. 29 C.F.R. § 1614.107(a)(2). The claim about EEO Counselor 1 is different in nature to the matters she raised with the EEO counselor in case 3 and occurred previously, i.e., did not grow out of the claims or making the claims in case 3.
We also find that the complaint in case 3 must be dismissed under 29 C.F.R. § 1614.107(a)(8), which requires that allegations of dissatisfaction with the processing of a previously filed complaint be dismissed. In the future if Complainant is dissatisfied with the Agency's processing of her EEO case she should notify the Agency official responsible for the complaints processing of her concerns, who then must have someone address the matter. Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO-MD-110), Chap. 5.IV.D, at 5-25 to 5-27 (November 9, 1999).
The FAD is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
The Commission may, in its discretion, reconsider the decision in this case if the Complainant or the Agency submits a written request containing arguments or evidence which tend to establish that:
1. The appellate decision involved a clearly erroneous interpretation of material fact or law; or
2. The appellate decision will have a substantial impact on the policies, practices, or operations of the Agency.
Requests to reconsider, with supporting statement or brief, must be filed with the Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision or within twenty (20) calendar days of receipt of another party's timely request for reconsideration. See 29 C.F.R. § 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at 9-18 (November 9, 1999). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC 20013. In the absence of a legible postmark, the request to reconsider shall be deemed timely filed if it is received by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. The request or opposition must also include proof of service on the other party.
Failure to file within the time period will result in dismissal of your request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted with your request for reconsideration. The Commission will consider requests for reconsideration filed after the deadline only in very limited circumstances. See 29 C.F.R. § 1614.604(c).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S0610)
You have the right to file a civil action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision. If you file a civil action, you must name as the defendant in the complaint the person who is the official Agency head or department head, identifying that person by his or her full name and official title. Failure to do so may result in the dismissal of your case in court. "Agency" or "department" means the national organization, and not the local office, facility or department in which you work. If you file a request to reconsider and also file a civil action, filing a civil action will terminate the administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z0610)
If you decide to file a civil action, and if you do not have or cannot afford the services of an attorney, you may request from the Court that the Court appoint an attorney to represent you and that the Court also permit you to file the action without payment of fees, costs, or other security. See Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq.; the Rehabilitation Act of 1973, as amended, 29 U.S.C. §§ 791, 794(c). The grant or denial of the request is within the sole discretion of the Court. Filing a request for an attorney with the Court does not extend your time in which to file a civil action. Both the request and the civil action must be filed within the time limits as stated in the paragraph above ("Right to File a Civil Action").
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
October 10, 2012
__________________
Date
1 The Agency defined the complaint as Complainant not being provided counseling services. A close review of the record shows Complainant alleged she was not properly counseled.
2 The formal complaint form has a basis of discrimination section where a Complainant can check off boxes to indicate the alleged bases of discrimination. For the basis of sex Complainant checked off a box for female and a box for sexual harassment. She did not raise sexual harassment in counseling, nor has she provided any examples thereof. The Agency dismissed the sexual harassment matter on the grounds that Complainant did not raise it with the EEO counselor. We find that Complainant did not intend to raise sexual harassment as an issue. Rather she was alleging sex discrimination when EEO Counselor 1 did not properly counsel her. The EEO counselor's report on case 2 indicates that Complainant believed EEO Counselor 1 did not provide proper counseling in case 1 because she engaged in "deception, misguidance, misinformation" and was "deceitful, unethical, obnoxious, and unprofessional."
------------------------------------------------------------
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135 | https://www.eeoc.gov/sites/default/files/migrated_files/decisions/05980175.txt | 05980175.txt | TXT | text/plain | 9,604 | July 22, 1999 | Appeal Number: 01966325
Background:
Appellant--a food worker--filed an EEO complaint in December 1995
primarily regarding his nonselection for the Food Service Foreman position
in July 1995. Record evidence showed that appellant filed a grievance
on the matter, which was denied as "nongrievable" on September 28, 1995.
Because appellant did not contact an EEO counselor until October 31,
1995, the agency issued a final decision (FAD) dismissing his complaint
for untimely EEO contact. The agency asserted that appellant should
have been aware of the time limits for the following reasons: 1) the
telephone numbers and photographs of EEO counselors as well as other
information about the EEO process were prominently displayed in the
station;<2> 2) appellant received mandatory training explaining EEO
procedural time limits in November 1993; and, 3) appellant received a
memorandum providing information about the EEO program and describing
the complaint processing system as recently as January 1995.
On appeal, appellant--who has worked for the agency for 20+ years--
asserted that he was unaware of his EEO rights or the time limits for
EEO contact. Upon review, the previous decision affirmed the FAD on
the grounds that appellant had constructive notice of the time limits
for contacting an EEO counselor. Specifically, the previous decision
referred to a January 1995 Medical Center Memorandum entitled "Equal
Employment Opportunity Program," which explained--inter alia--the 45-day
limitations period for EEO counselor contact. The agency asserted that
the memorandum was distributed to all employees.
In his reconsideration request, appellant contends that he never had EEO
training and therefore was unfamiliar with EEO procedures. Appellant
refers to several documents, including a July 1, 1997 letter from the
Human Resources Management Supervisor stating that he (appellant) never
had EEO training, which allegedly were included with his reconsideration
request. None of these documents appear in the case file.
In response, the agency contends that it cannot fully respond to
appellant's request because it did not receive a copy of the documents
that appellant supposedly enclosed with his reconsideration request. The
agency asserts, however, that the record contains sufficient evidence--as
outlined in the FAD--to support the conclusion that appellant had
constructive notice of the time period for timely contacting an EEO
counselor.
Legal Analysis:
the Commission) to reconsider the decision
in Washington v. Dep't of Veterans Affairs, EEOC Appeal No. 01966325
(October 31, 1997).<1> EEOC regulations provide that the Commissioners
may, in their discretion, reconsider any previous Commission decision.
29 C.F.R. §1614.407(a). The party requesting reconsideration must
submit written argument or evidence which tends to establish one or
more of the following three criteria: new and material evidence is
available that was not readily available when the previous decision
was issued, 29 C.F.R. §1614.407(c)(1); the previous decision involved
an erroneous interpretation of law or regulation, or material fact,
or a misapplication of established policy, 29 C.F.R. §1614.407(c)(2);
and the decision is of such exceptional nature as to have substantial
precedential implications, 29 C.F.R. §1614.407(c)(3). For the reasons
set forth herein, appellant's request is denied.
ISSUE PRESENTED
The issue presented is whether appellant's request meets any of the
criteria for reconsideration.
BACKGROUND
Appellant--a food worker--filed an EEO complaint in December 1995
primarily regarding his nonselection for the Food Service Foreman position
in July 1995. Record evidence showed that appellant filed a grievance
on the matter, which was denied as "nongrievable" on September 28, 1995.
Because appellant did not contact an EEO counselor until October 31,
1995, the agency issued a final decision (FAD) dismissing his complaint
for untimely EEO contact. The agency asserted that appellant should
have been aware of the time limits for the following reasons: 1) the
telephone numbers and photographs of EEO counselors as well as other
information about the EEO process were prominently displayed in the
station;<2> 2) appellant received mandatory training explaining EEO
procedural time limits in November 1993; and, 3) appellant received a
memorandum providing information about the EEO program and describing
the complaint processing system as recently as January 1995.
On appeal, appellant--who has worked for the agency for 20+ years--
asserted that he was unaware of his EEO rights or the time limits for
EEO contact. Upon review, the previous decision affirmed the FAD on
the grounds that appellant had constructive notice of the time limits
for contacting an EEO counselor. Specifically, the previous decision
referred to a January 1995 Medical Center Memorandum entitled "Equal
Employment Opportunity Program," which explained--inter alia--the 45-day
limitations period for EEO counselor contact. The agency asserted that
the memorandum was distributed to all employees.
In his reconsideration request, appellant contends that he never had EEO
training and therefore was unfamiliar with EEO procedures. Appellant
refers to several documents, including a July 1, 1997 letter from the
Human Resources Management Supervisor stating that he (appellant) never
had EEO training, which allegedly were included with his reconsideration
request. None of these documents appear in the case file.
In response, the agency contends that it cannot fully respond to
appellant's request because it did not receive a copy of the documents
that appellant supposedly enclosed with his reconsideration request. The
agency asserts, however, that the record contains sufficient evidence--as
outlined in the FAD--to support the | William K. Washington v. Department of Veterans Affairs
05980175
July 22, 1999
William K. Washington, )
Appellant, ) Request No. 05980175
) Appeal No. 01966325
v. )
)
Togo D. West, Jr., )
Secretary, )
Department of Veterans Affairs, )
Agency. )
________________________________)
DENIAL OF RECONSIDERATION
INTRODUCTION
On December 2, 1997, William K. Washington (hereinafter referred
to as appellant) timely initiated a request to the Equal Employment
Opportunity Commission (the Commission) to reconsider the decision
in Washington v. Dep't of Veterans Affairs, EEOC Appeal No. 01966325
(October 31, 1997).<1> EEOC regulations provide that the Commissioners
may, in their discretion, reconsider any previous Commission decision.
29 C.F.R. §1614.407(a). The party requesting reconsideration must
submit written argument or evidence which tends to establish one or
more of the following three criteria: new and material evidence is
available that was not readily available when the previous decision
was issued, 29 C.F.R. §1614.407(c)(1); the previous decision involved
an erroneous interpretation of law or regulation, or material fact,
or a misapplication of established policy, 29 C.F.R. §1614.407(c)(2);
and the decision is of such exceptional nature as to have substantial
precedential implications, 29 C.F.R. §1614.407(c)(3). For the reasons
set forth herein, appellant's request is denied.
ISSUE PRESENTED
The issue presented is whether appellant's request meets any of the
criteria for reconsideration.
BACKGROUND
Appellant--a food worker--filed an EEO complaint in December 1995
primarily regarding his nonselection for the Food Service Foreman position
in July 1995. Record evidence showed that appellant filed a grievance
on the matter, which was denied as "nongrievable" on September 28, 1995.
Because appellant did not contact an EEO counselor until October 31,
1995, the agency issued a final decision (FAD) dismissing his complaint
for untimely EEO contact. The agency asserted that appellant should
have been aware of the time limits for the following reasons: 1) the
telephone numbers and photographs of EEO counselors as well as other
information about the EEO process were prominently displayed in the
station;<2> 2) appellant received mandatory training explaining EEO
procedural time limits in November 1993; and, 3) appellant received a
memorandum providing information about the EEO program and describing
the complaint processing system as recently as January 1995.
On appeal, appellant--who has worked for the agency for 20+ years--
asserted that he was unaware of his EEO rights or the time limits for
EEO contact. Upon review, the previous decision affirmed the FAD on
the grounds that appellant had constructive notice of the time limits
for contacting an EEO counselor. Specifically, the previous decision
referred to a January 1995 Medical Center Memorandum entitled "Equal
Employment Opportunity Program," which explained--inter alia--the 45-day
limitations period for EEO counselor contact. The agency asserted that
the memorandum was distributed to all employees.
In his reconsideration request, appellant contends that he never had EEO
training and therefore was unfamiliar with EEO procedures. Appellant
refers to several documents, including a July 1, 1997 letter from the
Human Resources Management Supervisor stating that he (appellant) never
had EEO training, which allegedly were included with his reconsideration
request. None of these documents appear in the case file.
In response, the agency contends that it cannot fully respond to
appellant's request because it did not receive a copy of the documents
that appellant supposedly enclosed with his reconsideration request. The
agency asserts, however, that the record contains sufficient evidence--as
outlined in the FAD--to support the conclusion that appellant had
constructive notice of the time period for timely contacting an EEO
counselor.
ANALYSIS AND FINDINGS
The Commission may, in its discretion, reconsider any previous decision
when the party requesting reconsideration submits written argument or
evidence which tends to establish that at least one of the criteria
of 29 C.F.R. §1614.407(c) is met. For a decision to be reconsidered,
the request must contain specific information that meets the criteria
referenced above.
As noted in the previous decision, the record contained a January 1995
memorandum explaining the EEO process, including the time limits for
contacting an EEO counselor, that was distributed to all employees.
In addition, the record contained a sign-in sheet for sexual harassment
training, which the agency indicated also included procedures for
filing an EEO complaint. Appellant's signature appears next to his
name and shows that he completed the training on November 17, 1993.
In his reconsideration request, appellant contended that he never had
"EEOC training" and referred to the HRM supervisor's statement to that
effect. Appellant, however, failed to include any enclosures with his
reconsideration request. Assuming that the HRM supervisor stated that
appellant never had "EEOC training," the Commission finds that appellant's
signature on the sign-in sheet for sexual harassment training has greater
evidentiary weight than the HRM supervisor's statement. The Commission
finds that the evidence was sufficient to show that appellant was on
notice of the 45-day time limitations period for contacting an EEO
counselor.
Because appellant's request failed to meet any of the criteria for
reconsideration, the Commission therefore denies the request and affirms
the previous decision.
CONCLUSION
After a review of appellant's request for reconsideration, the agency's
response, the previous decision, and the entire record, the Commission
finds that appellant's request for reconsideration fails to meet
the criteria of 29 C.F.R. §1614.407(c), and it is the decision of the
Commission to deny the request. The decision in EEOC Appeal No. 01966325
remains the Commission's final decision. There is no further right of
administrative appeal from a decision of the Commission on a request
for reconsideration.
STATEMENT OF APPELLANT'S RIGHTS
RIGHT TO FILE A CIVIL ACTION (P0993)
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.
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.
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 22, 1999
Date Frances M. Hart
Executive Officer
1The agency requested that appellant's reconsideration request be
dismissed on the grounds that he had filed a civil action on the same
matter. A review of the district court's October 28, 1998 decision
showed, however, that appellant was barred from raising before the court
the allegations in his EEO complaint because he did not timely raise
them with the EEO counselor. Consequently, appellant's request was not
subject to dismissal under 29 C.F.R. §1614.410.
2The record contained no evidence in this regard, e.g., copies of the
EEO posters. | [
"Washington v. Dep't of Veterans Affairs, EEOC Appeal No. 01966325 (October 31, 1997)"
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136 | https://www.eeoc.gov/sites/default/files/decisions/2021_08_31/2021001680.pdf | 2021001680.pdf | PDF | application/pdf | 9,933 | U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMIS SION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Shela O.,1 Complainant, v. Denis R. McDonough, Secretary, Department of Veterans Affairs, (Veterans Health Administration) Agency. | January 13, 2020 | Appeal Number: 2021001680
Background:
At the time of events giving rise to this complaint, Complainant was employed by the Agency as
a Program Analyst (Planetree Coordinator), GS -343-13, at the Veterans Affairs Hudson Valley
Health Care System (Montrose Campus) in Montrose, New York.
On November 6, 2020, Complainant filed an equal employment opportunity (EEO) complaint alleging that the Agency unlawfully retaliated against her for prior protected EEO activity under
Title VII when, effective February 24, 2020, she was reassigned t o the position of Business
Manager in Medicine and Specialties , an effective demotion.
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 The Business Manager position is typically at the GS -11/12 level. Prior to the reassignme nt, by
email human resources advised Complainant that if she moved into this position, she would be
The Age ncy dismissed Complainant’s complaint because she failed to timely initiate EEO
counseling. It found Complainant initiated EEO counseling on her reassignment claim on
September 25, 2020, beyond the 45- day time limitation. It found that while Complainant so ught
to bring this claim on September 25, 2020, as an amendment to prior EEO complaint 200H -
0620- 2019104798, it was too late because it already completed the EEO investigation and issued
her (on August 27, 2020) her right to elect a hearing before an Admin istrative Judge (AJ) with
the EEOC or a FAD withou t a hearing. Complainant filed the attempted amendment on
September 25, 2020, with her election for a FAD.
The instant appeal followed. On appeal, Complainant argues that her reassignment claim is like and related to two prior EEO complaint s by her – identified as 200H -0620- 2019104798 and
200H -0620- 2019102854. The Agency completed the EEO investigation on complaint 200H -
0620- 2019102854 and issued Complainant (on July 17, 2020) the right to elect a hearing before
an AJ or a F AD without a hearing. On August 14, 2020, Complainant opted for a FAD without a
hearing. Complainant argues that because the reassignment issue is like or related to issues in her
two prior EEO complaints which were still pending, the Agency erred by not accept ing her
reassignment claim amendment and instead referring her to EEO counseling on the claim. She
argues that had the Agency accepted her amendment, no EEO counseling would be required –
and hence the 45- day time limit would not apply.
In opposition to Complainant’s appeal, Agency counsel argues that the reassignment claim is not like or related to Complainant’s two prior EEO complaints.
Legal Analysis:
the Commission’s website.
2 The Business Manager position is typically at the GS -11/12 level. Prior to the reassignme nt, by
email human resources advised Complainant that if she moved into this position, she would be
The Age ncy dismissed Complainant’s complaint because she failed to timely initiate EEO
counseling. It found Complainant initiated EEO counseling on her reassignment claim on
September 25, 2020, beyond the 45- day time limitation. It found that while Complainant so ught
to bring this claim on September 25, 2020, as an amendment to prior EEO complaint 200H -
0620- 2019104798, it was too late because it already completed the EEO investigation and issued
her (on August 27, 2020) her right to elect a hearing before an Admin istrative Judge (AJ) with
the EEOC or a FAD withou t a hearing. Complainant filed the attempted amendment on
September 25, 2020, with her election for a FAD.
The instant appeal followed. On appeal, Complainant argues that her reassignment claim is like and related to two prior EEO complaint s by her – identified as 200H -0620- 2019104798 and
200H -0620- 2019102854. The Agency completed the EEO investigation on complaint 200H -
0620- 2019102854 and issued Complainant (on July 17, 2020) the right to elect a hearing before
an AJ or a F AD without a hearing. On August 14, 2020, Complainant opted for a FAD without a
hearing. Complainant argues that because the reassignment issue is like or related to issues in her
two prior EEO complaints which were still pending, the Agency erred by not accept ing her
reassignment claim amendment and instead referring her to EEO counseling on the claim. She
argues that had the Agency accepted her amendment, no EEO counseling would be required –
and hence the 45- day time limit would not apply.
In opposition to Complainant’s appeal, Agency counsel argues that the reassignment claim is not like or related to Complainant’s two prior EEO complaints.
ANALYSIS AND FINDINGS
A complainant may amend a complaint at any time prior to the conclus ion of the investigation to
include issues or claims like or related to those raised in the complaint. 29 C.F.R. § 1614.106. Complainant correctly argues that her two prior EEO complain ts were pending when she filed
her amendment – the Agency had not yet i ssued its FADs. But this misses the point. Th is
regulation allows an amendment “ at any time prior to the | U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMIS SION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Shela O.,1
Complainant,
v.
Denis R. McDonough,
Secretary,
Department of Veterans Affairs,
(Veterans Health Administration)
Agency.
Appeal No. 2021001680
Agency No. 200H-0620-2021100180
DECISION
On January 13, 2020, via counsel, Complainant filed a timely appeal with the Equal Employment
Opportunity Commission (EEOC or Commission) from a December 22, 2020 final Agency
decision (FAD) dismissing her compl aint alleg ing unlawful employment discrimination in
violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. § 2000e
et seq .
BACKGROUND
At the time of events giving rise to this complaint, Complainant was employed by the Agency as
a Program Analyst (Planetree Coordinator), GS -343-13, at the Veterans Affairs Hudson Valley
Health Care System (Montrose Campus) in Montrose, New York.
On November 6, 2020, Complainant filed an equal employment opportunity (EEO) complaint alleging that the Agency unlawfully retaliated against her for prior protected EEO activity under
Title VII when, effective February 24, 2020, she was reassigned t o the position of Business
Manager in Medicine and Specialties , an effective demotion.
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 The Business Manager position is typically at the GS -11/12 level. Prior to the reassignme nt, by
email human resources advised Complainant that if she moved into this position, she would be
The Age ncy dismissed Complainant’s complaint because she failed to timely initiate EEO
counseling. It found Complainant initiated EEO counseling on her reassignment claim on
September 25, 2020, beyond the 45- day time limitation. It found that while Complainant so ught
to bring this claim on September 25, 2020, as an amendment to prior EEO complaint 200H -
0620- 2019104798, it was too late because it already completed the EEO investigation and issued
her (on August 27, 2020) her right to elect a hearing before an Admin istrative Judge (AJ) with
the EEOC or a FAD withou t a hearing. Complainant filed the attempted amendment on
September 25, 2020, with her election for a FAD.
The instant appeal followed. On appeal, Complainant argues that her reassignment claim is like and related to two prior EEO complaint s by her – identified as 200H -0620- 2019104798 and
200H -0620- 2019102854. The Agency completed the EEO investigation on complaint 200H -
0620- 2019102854 and issued Complainant (on July 17, 2020) the right to elect a hearing before
an AJ or a F AD without a hearing. On August 14, 2020, Complainant opted for a FAD without a
hearing. Complainant argues that because the reassignment issue is like or related to issues in her
two prior EEO complaints which were still pending, the Agency erred by not accept ing her
reassignment claim amendment and instead referring her to EEO counseling on the claim. She
argues that had the Agency accepted her amendment, no EEO counseling would be required –
and hence the 45- day time limit would not apply.
In opposition to Complainant’s appeal, Agency counsel argues that the reassignment claim is not like or related to Complainant’s two prior EEO complaints.
ANALYSIS AND FINDINGS
A complainant may amend a complaint at any time prior to the conclus ion of the investigation to
include issues or claims like or related to those raised in the complaint. 29 C.F.R. § 1614.106. Complainant correctly argues that her two prior EEO complain ts were pending when she filed
her amendment – the Agency had not yet i ssued its FADs. But this misses the point. Th is
regulation allows an amendment “ at any time prior to the conclusion of the investigation ”.
Because the EEO investigations on both prior E EO complaints were completed prior to
Complainant seeking bring her ame ndment, the amendment was too late. For this reason, we
need not determine whether the attempted amendment was like or related to either of her two prior EEO complaints. The Agency corr ectly referred Complainant to EEO counseling.
An aggrieved person m ust seek EEO counseling within 45 days of the date of the alleged
discriminatory action, or in the case of a personnel action, within 45 days of the effective date of the action. 29 C.F.R. § 1614.105(a)(1) & .107(a)(2).
eligible for grade retention for two years which would then convert to pay retention after two years. In the subsequent Interim Medical Center Director’s notice to Complainant of the
reassignment , Complainant was advised she will be “retained” in her new position “in an
‘incumbent only positi on description (PD)’ at the GS -13 grade level… [and]… [t]his assignment
will not affect your pay or grade.”
The Agency properly deemed Septembe r 25, 2020, as the date Complainant initiated EEO
counseling on her reassignment claim – this was the date she attempted to bring this matter as an
amendment to prior complaint 200H -0620- 2019104798. We agree, for the reason found by the
Agency, that Compla inant failed to timely initiate EEO counseling on her reassignment claim.
The FAD is AFFIRMED.
STA TEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0920)
The Commission may, in its discretion, reconsider this appellate decision if Complainant or the Agenc y submits a written request that contains arguments or evidence that tend to establish that:
1. The appellate decision involved a clearly erroneous interpretation of material fact or
law; or
2. The appellate decision will have a substantial impact on t he policies, practices, or
operations of the agency.
Requests for reconsideration must be filed with EEOC’s Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. If the party requesting reconsideration elects to file a statement or brief in support of the request, that statement or
brief must be filed together with the request for reconsideration . A party shall have twenty
(20) calendar days from rece ipt of another party’s request for reconsideration within whic h to
submit a brief or statement in opposition. See 29 C.F.R. § 1614.405; Equal Employment
Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD -110), at Chap. 9 § VII.B
(Aug. 5, 2015).
Complainant should submit his or her request for 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 Directo r, Office
of Federal Operations, Equal Employment Opportunity Commission, via regular mail addressed to P.O. Box 77960, Washington, DC 20013, or by certified mail addresse d to 131 M Street, NE,
Washington, DC 20507. In the absence of a legible postmark, a complainant’s request to
reconsider shall be deemed timely filed if OFO receives it by mail within five days of the expiration of the applicable filing period. See 29 C. F.R. § 1614.604.
An agency’s request for reconsideration must be submitted in digit al 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 vi a 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 f iling 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 actio n,
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” 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 o f 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. Simil arly, 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 wai ver 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 pa ragraph 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 20, 2021
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137 | https://www.eeoc.gov/sites/default/files/migrated_files/decisions/01984439.TXT | 01984439.TXT | TXT | text/plain | 10,330 | June 2, 1999 | Appeal Number: 01984439
Legal Analysis:
The Commission finds that even if we used the date of August 7, 1997
as the date of EEO Counselor contact, allegations 1 - 4 were properly
dismissed pursuant to 29 C.F.R. §1614.107(b) for untimely EEO Counselor
contact. The Commission notes that the record shows that appellant was
notified on May 12, 1997 by posting of his nonselection in allegation 4.
The Commission finds that allegations 1 - 4 are not timely under the
continuing violation theory because appellant should have reasonably
suspected discrimination concerning the incidents in allegations 1 -
4 more than 45 days prior to August 7, 1997.
The nonselection in allegation 5 occurred within 45 days of August 7,
1997. Thus, if appellant raised allegation 5 on August 7, 1997 with
an EEO Counselor, but was improperly dissuaded from continuing pursuit
of such counseling, the allegation would be considered timely raised.
The agency has not included in the record a statement from EEO Counselor
A addressing appellant's contention that EEO Counselor A improperly
(even if advertently) discouraged appellant from pursuing EEO counseling.
Therefore, we shall remand allegation 5 so that the agency may include an
affidavit from EEO Counselor A addressing appellant's specific contention
that EEO Counselor A discouraged appellant from seeking EEO counseling.
The agency's decision dismissing allegations 1 - 4 is AFFIRMED.
The agency's decision dismissing allegation 5 is VACATED and we REMAND
allegation 5 to the agency for further processing in accordance with
this decision and applicable regulations.
ORDER
The agency shall supplement the record with a statement from EEO Counselor
A specifically addressing appellant's specific contention that EEO
Counselor A improperly (even if advertently) discouraged appellant from
pursuing EEO counseling. The agency shall redetermine whether appellant
timely contacted an EEO Counselor regarding allegation 5. Within 60
days of the date this decision becomes final the agency shall either
issue a letter to appellant accepting allegation 5 for investigation
or issue a new decision dismissing allegation 5. A copy of the letter
accepting allegation 5 or new decision dismissing allegation 5 must be
sent to the Compliance Officer as referenced herein.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0595)
Compliance with the Commission's corrective action is mandatory.
The agency shall submit its compliance report within thirty (30)
calendar days of the completion of all ordered corrective action. The
report shall be submitted to the Compliance Officer, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. The agency's report must contain supporting
documentation, and the agency must send a copy of all submissions to
the appellant. If the agency does not comply with the Commission's
order, the appellant may petition the Commission for enforcement of
the order. 29 C.F.R. §1614.503 (a). The appellant also has the right
to file a civil action to enforce compliance with the Commission's
order prior to or following an administrative petition for enforcement.
See 29 C.F.R. §§ 1614.408, 1614.409, and 1614.503 (g). Alternatively,
the appellant has the right to file a civil action on the underlying
complaint in accordance with the paragraph below entitled "Right to File
A Civil Action." 29 C.F.R. §§ 1614.408 and 1614.409. A civil action for
enforcement or a civil action on the underlying complaint is subject to
the deadline stated in 42 U.S.C. §2000e-16(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. | Darrel L. Schneider v. Tennessee Valley Authority
01984439
June 2, 1999
Darrel L. Schneider, )
Appellant, )
)
v. ) Appeal No. 01984439
) Agency No. 0403-98078
Craven H. Crowell, Jr., )
Chairman, )
Tennessee Valley Authority, )
Agency. )
_________________________________)
DECISION
Appellant filed the instant appeal from the agency's decision dated
April 13, 1998 dismissing appellant's complaint of age discrimination
(five nonselection allegations) for failure to timely contact an EEO
Counselor.
The agency found that appellant initially contacted an EEO Counselor
on August 7, 1997, but did not pursue EEO counseling at that time.
The agency found that appellant contacted an EEO Counselor on February
24, 1998 at which time he pursued EEO counseling. Appellant argues that
he contacted EEO Counselor A on August 7, 1997, but that EEO Counselor A
discouraged appellant from pursuing EEO counseling by informing appellant
that the chances of appellant prevailing were not good. Appellant argued
that EEO Counselor A informed appellant "that for an age discrimination
case, if [the agency] hired only one applicant who was age 40 or over
we did not have a case."
The Commission finds that even if we used the date of August 7, 1997
as the date of EEO Counselor contact, allegations 1 - 4 were properly
dismissed pursuant to 29 C.F.R. §1614.107(b) for untimely EEO Counselor
contact. The Commission notes that the record shows that appellant was
notified on May 12, 1997 by posting of his nonselection in allegation 4.
The Commission finds that allegations 1 - 4 are not timely under the
continuing violation theory because appellant should have reasonably
suspected discrimination concerning the incidents in allegations 1 -
4 more than 45 days prior to August 7, 1997.
The nonselection in allegation 5 occurred within 45 days of August 7,
1997. Thus, if appellant raised allegation 5 on August 7, 1997 with
an EEO Counselor, but was improperly dissuaded from continuing pursuit
of such counseling, the allegation would be considered timely raised.
The agency has not included in the record a statement from EEO Counselor
A addressing appellant's contention that EEO Counselor A improperly
(even if advertently) discouraged appellant from pursuing EEO counseling.
Therefore, we shall remand allegation 5 so that the agency may include an
affidavit from EEO Counselor A addressing appellant's specific contention
that EEO Counselor A discouraged appellant from seeking EEO counseling.
The agency's decision dismissing allegations 1 - 4 is AFFIRMED.
The agency's decision dismissing allegation 5 is VACATED and we REMAND
allegation 5 to the agency for further processing in accordance with
this decision and applicable regulations.
ORDER
The agency shall supplement the record with a statement from EEO Counselor
A specifically addressing appellant's specific contention that EEO
Counselor A improperly (even if advertently) discouraged appellant from
pursuing EEO counseling. The agency shall redetermine whether appellant
timely contacted an EEO Counselor regarding allegation 5. Within 60
days of the date this decision becomes final the agency shall either
issue a letter to appellant accepting allegation 5 for investigation
or issue a new decision dismissing allegation 5. A copy of the letter
accepting allegation 5 or new decision dismissing allegation 5 must be
sent to the Compliance Officer as referenced herein.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0595)
Compliance with the Commission's corrective action is mandatory.
The agency shall submit its compliance report within thirty (30)
calendar days of the completion of all ordered corrective action. The
report shall be submitted to the Compliance Officer, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. The agency's report must contain supporting
documentation, and the agency must send a copy of all submissions to
the appellant. If the agency does not comply with the Commission's
order, the appellant may petition the Commission for enforcement of
the order. 29 C.F.R. §1614.503 (a). The appellant also has the right
to file a civil action to enforce compliance with the Commission's
order prior to or following an administrative petition for enforcement.
See 29 C.F.R. §§ 1614.408, 1614.409, and 1614.503 (g). Alternatively,
the appellant has the right to file a civil action on the underlying
complaint in accordance with the paragraph below entitled "Right to File
A Civil Action." 29 C.F.R. §§ 1614.408 and 1614.409. A civil action for
enforcement or a civil action on the underlying complaint is subject to
the deadline stated in 42 U.S.C. §2000e-16(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 (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:
June 2, 1999
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations | [] | [
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138 | https://www.eeoc.gov/sites/default/files/migrated_files/decisions/01A12519_r.txt | 01A12519_r.txt | TXT | text/plain | 9,893 | Patricio Tapia v. Department of the Army 01A12519 June 25, 2003 . Patricio Tapia, Complainant, v. R.L. Brownlee, Acting Secretary, Department of the Army, (New Mexico Army National Guard), Agency. | June 25, 2003 | Appeal Number: 01A12519
Complaint Allegations:
In his complaint, complainant alleged that he was subjected to discrimination on the bases of race (Caucasian), national origin (Hispanic), sex (male), color (white), age (over 40 years old), and in reprisal for prior EEO activity when on July 31, 2000, the agency failed to select him for the position of Supply Technician, T-00-104. In its final decision, the agency dismissed complainant's complaint for untimely EEO Counselor contact, pursuant to 29 C.F.R. § 1614.107(a)(2). The agency alternatively dismissed complainant's complaint for failure to state a claim because the person complainant named as the discriminating agency official was not involved in the selection process. On appeal, complainant maintains that during the first week in September 2000 he tried to initiate timely EEO Counselor contact, but was unable to do so because the EEO Counselor/Lieutenant Colonel was not in the office during that time period. Complainant maintained that he asked for a replacement counselor but was told he had to wait until the Lieutenant Colonel returned to the office to initiate counseling. 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. To satisfy the criterion for Counselor contact, complainant need only contact an agency official logically connected with the EEO process, even if that official is not an EEO Counselor, and exhibit 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 9, 1996). 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.
Case Facts:
Complainant filed a timely appeal with this Commission from the agency's
decision dated January 30, 2001, 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. Complainant initiated EEO Counselor contact on October 5,
2000. After informal efforts to resolve his claim proved unsuccessful,
complainant filed a formal complaint. In his complaint, complainant
alleged that he was subjected to discrimination on the bases of race
(Caucasian), national origin (Hispanic), sex (male), color (white),
age (over 40 years old), and in reprisal for prior EEO activity when
on July 31, 2000, the agency failed to select him for the position of
Supply Technician, T-00-104.
In its final decision, the agency dismissed complainant's
complaint for untimely EEO Counselor contact, pursuant to 29 C.F.R. §
1614.107(a)(2). The agency alternatively dismissed complainant's complaint
for failure to state a claim because the person complainant named as the
discriminating agency official was not involved in the selection process.
On appeal, complainant maintains that during the first week in September
2000 he tried to initiate timely EEO Counselor contact, but was unable to
do so because the EEO Counselor/Lieutenant Colonel was not in the office
during that time period. Complainant maintained that he asked for a
replacement counselor but was told he had to wait until the Lieutenant
Colonel returned to the office to initiate counseling.
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.
To satisfy the criterion for Counselor contact, complainant need only
contact an agency official logically connected with the EEO process,
even if that official is not an EEO Counselor, and exhibit 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 9, 1996).
EEOC Regulations provide that the agency or the Commission shall extend
the time limits when the individual shows that he was not notified of the
time limits and was not otherwise aware of them, that he did not know
and reasonably should not have known that the discriminatory matter or
personnel action occurred, that despite due diligence he was prevented
by circumstances beyond his control from contacting the Counselor within
the time limits, or for other reasons considered sufficient by the agency
or the Commission.
The record contains an affidavit from the Lieutenant Colonel/EEO
Manager wherein he responds that he was in the office and available for
counseling during the entire month of September 2000. The Lieutenant
Colonel maintains that he did not receive any communication from
complainant concerning the instant EEO claim until October 5, 2000.
The Lieutenant Colonel also submits for the record a copy of his leave
record for September 2000 illustrating that he did not take any leave
during that time period. The record also contains an affidavit from an
agency Labor Relations Specialist wherein he states that when complainant
approached him on September 5, 2000, he responded that he was not an EEO
counselor and that he should contact the Lieutenant Colonel/EEO Manager
to initiate the EEO process.
Upon review of the matter, the Commission finds that the agency properly
dismissed complainant's complaint. The agency notified complainant
that he was not selected for the Supply Technician position on July 31,
2000. The record reflects that complainant initiated EEO Counselor contact
on October 5, 2000, well beyond forty-five days after complainant was
notified of his nonselection. Complainant maintains that he was precluded
from initiating timely Counselor contact because the Lieutenant Colonel
was not in the office after he received notice of his non-selection.
Complainant failed to present any corroborating evidence that the EEO
Manager or other EEO personnel were unavailable at any time during the
relevant time period. However, the record evidence indicates that
the Lieutenant Colonel was available for EEO counseling during the
relevant time period. Moreover, we find that complainant's contact
with the Labor Relations Specialist did not constitute contact with a
person logically connected with the EEO process and note that the Labor
Relations Specialist specifically advised complainant to contact the EEO
Counselor to pursue his claim. Consequently, 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<1>. | Patricio Tapia v. Department of the Army
01A12519
June 25, 2003
.
Patricio Tapia,
Complainant,
v.
R.L. Brownlee,
Acting Secretary,
Department of the Army,
(New Mexico Army National Guard),
Agency.
Appeal No. 01A12519
Agency No. T-0181-NM-A-02-0-RAGNCO
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dated January 30, 2001, 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. Complainant initiated EEO Counselor contact on October 5,
2000. After informal efforts to resolve his claim proved unsuccessful,
complainant filed a formal complaint. In his complaint, complainant
alleged that he was subjected to discrimination on the bases of race
(Caucasian), national origin (Hispanic), sex (male), color (white),
age (over 40 years old), and in reprisal for prior EEO activity when
on July 31, 2000, the agency failed to select him for the position of
Supply Technician, T-00-104.
In its final decision, the agency dismissed complainant's
complaint for untimely EEO Counselor contact, pursuant to 29 C.F.R. §
1614.107(a)(2). The agency alternatively dismissed complainant's complaint
for failure to state a claim because the person complainant named as the
discriminating agency official was not involved in the selection process.
On appeal, complainant maintains that during the first week in September
2000 he tried to initiate timely EEO Counselor contact, but was unable to
do so because the EEO Counselor/Lieutenant Colonel was not in the office
during that time period. Complainant maintained that he asked for a
replacement counselor but was told he had to wait until the Lieutenant
Colonel returned to the office to initiate counseling.
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.
To satisfy the criterion for Counselor contact, complainant need only
contact an agency official logically connected with the EEO process,
even if that official is not an EEO Counselor, and exhibit 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 9, 1996).
EEOC Regulations provide that the agency or the Commission shall extend
the time limits when the individual shows that he was not notified of the
time limits and was not otherwise aware of them, that he did not know
and reasonably should not have known that the discriminatory matter or
personnel action occurred, that despite due diligence he was prevented
by circumstances beyond his control from contacting the Counselor within
the time limits, or for other reasons considered sufficient by the agency
or the Commission.
The record contains an affidavit from the Lieutenant Colonel/EEO
Manager wherein he responds that he was in the office and available for
counseling during the entire month of September 2000. The Lieutenant
Colonel maintains that he did not receive any communication from
complainant concerning the instant EEO claim until October 5, 2000.
The Lieutenant Colonel also submits for the record a copy of his leave
record for September 2000 illustrating that he did not take any leave
during that time period. The record also contains an affidavit from an
agency Labor Relations Specialist wherein he states that when complainant
approached him on September 5, 2000, he responded that he was not an EEO
counselor and that he should contact the Lieutenant Colonel/EEO Manager
to initiate the EEO process.
Upon review of the matter, the Commission finds that the agency properly
dismissed complainant's complaint. The agency notified complainant
that he was not selected for the Supply Technician position on July 31,
2000. The record reflects that complainant initiated EEO Counselor contact
on October 5, 2000, well beyond forty-five days after complainant was
notified of his nonselection. Complainant maintains that he was precluded
from initiating timely Counselor contact because the Lieutenant Colonel
was not in the office after he received notice of his non-selection.
Complainant failed to present any corroborating evidence that the EEO
Manager or other EEO personnel were unavailable at any time during the
relevant time period. However, the record evidence indicates that
the Lieutenant Colonel was available for EEO counseling during the
relevant time period. Moreover, we find that complainant's contact
with the Labor Relations Specialist did not constitute contact with a
person logically connected with the EEO process and note that the Labor
Relations Specialist specifically advised complainant to contact the EEO
Counselor to pursue his claim. Consequently, 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<1>.
Accordingly, the Commission AFFIRMS the agency's dismissal of
complainant's 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
_June 25, 2003_________________
Date
1Since we are affirming the agency's
dismissal of complainant's complaint on the grounds of untimely EEO
Counselor contact, we will not address the agency's alternative grounds
for dismissal, i.e., that complainant's complaint fails to state a claim.
| [
"Howard v. Department of the Navy, EEOC Request No. 05970852 (February 11, 1999)",
"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 9, 1996)",
"29 C.F.R. § 1614.107(a)",
"29 C.F.R. § 1614.... | [
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-... |
139 | https://www.eeoc.gov/sites/default/files/migrated_files/decisions/01996146_r.txt | 01996146_r.txt | TXT | text/plain | 14,331 | Robert L. Morman, et al., v. Department of the Air Force 01996146 January 9, 2002 . Robert L. Morman, et al., Complainant, v. Dr. James G. Roche, Secretary, Department of the Air Force, Agency. | January 9, 2002 | Appeal Number: 01996146
Case Facts:
Complainant, as class agent, filed a timely appeal with this Commission
from a final agency decision dated June 30, 1999, dismissing his class
action complaint alleging 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 the Rehabilitation Act of 1973,
as amended, 29 U.S.C. § 791, et seq. The Commission accepts the appeal
in accordance with 29 C.F.R. § 1614.405.
The record reflects that complainant is an employee of the agency who
actively serves as an EEO representative in numerous EEO complaints.
Complainant contacted an EEO Counselor on April 16, 1996, and subsequently
filed a formal class complaint on April 22, 1996, claiming discrimination
on the bases of race, color, religion, sex, national origin, age,
disability, and in reprisal for prior protected activity (all bases
unspecified). After obtaining additional information from complainant,
the agency framed the complaint as consisting of the following matters:
The agency changed the procedure for filing EEO complaints without notice;
The agency implemented changes to 29 C.F.R. § 1614.605(a)(b)(c) without
authority, notice and consideration of impact and implementation;<1>
The agency retaliated against complainant [by denying his requests for
official time to act as an EEO representative] because of the number of
EEO complaints he represented;
The agency denied complainant time to represent EEO complaints as set
forth by law, rules and regulations;
The agency attempted to dissuade people from filing complaints;
The agency disallowed EEO complaint representation;
The agency created a conflict of interest within the EEO office by
assignment of counselors who are manipulated;
The agency denied the recognition of a collective bargaining agreement
by defining with prejudice the role of Union Representation in processing
EEO complaints; and
This interference deflects the inquiries of promotion, performance rating
and uneven punishment for like or similar infractions of policies.
The agency transferred the case to an EEOC Administrative Judge (AJ)
to make a decision regarding class certification.
In a May 21, 1999 decision, the AJ construed the instant complaint
as claiming that the agency improperly disqualified complainant
from representing EEO complainants and that the agency continuously
misinterpreted the Commission's regulations on EEO representation. The AJ
also determined that the class complaint did not define a class, but
found that complainant claimed that the agency's improper limitation on
EEO representation affects all federal workers alleging discrimination.
Based on this framing of the complaint, the AJ found that the Commission's
decision in two prior companion cases rendered the instant complaint
moot, precluding the need for a determination on class certification.
Specifically, the AJ found that in Morman v. Department of the Air
Force, EEOC Appeal No. 01963870 (March 17, 1997) (hereinafter referred
to as Morman) and Binion v. Department of the Air Force, EEOC Appeal
No. 01964629 (March 17, 1997), (hereinafter referred to as Binion),<2>
the Commission held that the agency improperly disqualified complainant
as an EEO representative and remanded both cases with the instructions to
the agency to meet with complainant to determine a reasonable amount of
official time to act as an EEO representative in future cases. The AJ
then concluded that the agency should dismiss the class complaint.
In its final decision, the agency adopted the AJ's determination
dismissing the complaint under 29 C.F.R. § 1614.107(a). The agency
additionally determined that none of the criteria necessary for
certification of a class action were satisfied. The agency dismissed
the class complaint, and forwarded complainant's individual complaint
to the EEO office for further processing as appropriate.
Complainant now appeals this determination. In response, the agency
repeats the arguments as set forth in its decision, and additionally
avers that complainant has no standing to bring a complaint on behalf of
those who were purportedly denied the benefit of his EEO representation,
or otherwise disadvantaged by the agency's purportedly improper
administration of the EEO process.
Dismissal of the class complaint on the grounds provided in 29 C.F.R. §
1614.107(a).
Initially, complainant must demonstrate that the class action complaint
constitutes an actionable claim not subject to dismissal on any grounds
provided in 29 C.F.R. § 1614.107(a).
Legal Analysis:
The Commission accepts the appeal
in accordance with 29 C.F.R. § 1614.405.
The record reflects that complainant is an employee of the agency who
actively serves as an EEO representative in numerous EEO complaints.
Complainant contacted an EEO Counselor on April 16, 1996, and subsequently
filed a formal class complaint on April 22, 1996, claiming discrimination
on the bases of race, color, religion, sex, national origin, age,
disability, and in reprisal for prior protected activity (all bases
unspecified). After obtaining additional information from complainant,
the agency framed the complaint as consisting of the following matters:
The agency changed the procedure for filing EEO complaints without notice;
The agency implemented changes to 29 C.F.R. § 1614.605(a)(b)(c) without
authority, notice and consideration of impact and implementation;<1>
The agency retaliated against complainant [by denying his requests for
official time to act as an EEO representative] because of the number of
EEO complaints he represented;
The agency denied complainant time to represent EEO complaints as set
forth by law, rules and regulations;
The agency attempted to dissuade people from filing complaints;
The agency disallowed EEO complaint representation;
The agency created a conflict of interest within the EEO office by
assignment of counselors who are manipulated;
The agency denied the recognition of a collective bargaining agreement
by defining with prejudice the role of Union Representation in processing
EEO complaints; and
This interference deflects the inquiries of promotion, performance rating
and uneven punishment for like or similar infractions of policies.
The agency transferred the case to an EEOC Administrative Judge (AJ)
to make a decision regarding class certification.
In a May 21, 1999 decision, the AJ construed the instant complaint
as claiming that the agency improperly disqualified complainant
from representing EEO complainants and that the agency continuously
misinterpreted the Commission's regulations on EEO representation. The AJ
also determined that the class complaint did not define a class, but
found that complainant claimed that the agency's improper limitation on
EEO representation affects all federal workers alleging discrimination.
Based on this framing of the complaint, the AJ found that the Commission's
decision in two prior companion cases rendered the instant complaint
moot, precluding the need for a determination on class certification.
Specifically, the AJ found that in Morman v. Department of the Air
Force, EEOC Appeal No. 01963870 (March 17, 1997) (hereinafter referred
to as Morman) and Binion v. Department of the Air Force, EEOC Appeal
No. 01964629 (March 17, 1997), (hereinafter referred to as Binion),<2>
the Commission held that the agency improperly disqualified complainant
as an EEO representative and remanded both cases with the instructions to
the agency to meet with complainant to determine a reasonable amount of
official time to act as an EEO representative in future cases. The AJ
then concluded that the agency should dismiss the class complaint.
In its final decision, the agency adopted the AJ's determination
dismissing the complaint under 29 C.F.R. § 1614.107(a). The agency
additionally determined that none of the criteria necessary for
certification of a class action were satisfied. The agency dismissed
the class complaint, and forwarded complainant's individual complaint
to the EEO office for further processing as appropriate.
Complainant now appeals this determination. In response, the agency
repeats the arguments as set forth in its decision, and additionally
avers that complainant has no standing to bring a complaint on behalf of
those who were purportedly denied the benefit of his EEO representation,
or otherwise disadvantaged by the agency's purportedly improper
administration of the EEO process.
Dismissal of the class complaint on the grounds provided in 29 C.F.R. §
1614.107(a).
Initially, complainant must demonstrate that the class action complaint
constitutes an actionable claim not subject to dismissal on any grounds
provided in 29 C.F.R. § 1614.107(a).
EEOC Regulation 29 C.F.R. § 1614.107(a)(5) provides for the dismissal of a
complaint when the issues raised therein are moot. To determine whether
the issues raised in complainant's complaint are moot, the factfinder
must ascertain whether: (1) it can be said with assurance that there
is no reasonable expectation that the alleged violation will recur; and
(2) interim relief or events have completely and irrevocably eradicated
the effects of the alleged discrimination. See County of Los Angeles
v. Davis, 440 U.S. 625, 631 (1979); Kuo v. Department of the Navy, EEOC
Request No. 05970343 (July 10, 1998). Moreover, the Commission has long
held that where a complainant has requested compensatory damages, the
potential for said damages means that the matter cannot be dismissed as
moot until the agency has at least given the complainant the opportunity
to present evidence supporting his claim for compensatory damages and
then has either awarded the damages or has shown that the complainant was
not entitled to them. Hofmann v. Department of the Navy, EEOC Request
No. 05970962 (October 28, 1999).
Based on our de novo review of this case, we find that the AJ improperly
determined that the instant complaint must be dismissed on the grounds
that it was rendered moot by Morman and Binion. Specifically, we find
that the record contains no evidence describing the agency's compliance
with the Commission's remand instructions in Morman or Binion sufficient
to conclude that there is no reasonable expectation that the alleged
violation will recur or that this remedy irrevocably eradicated the
effects of the alleged discrimination. On the contrary, in footnote
1 of his decision, the AJ indicates that complainant filed several
subsequent complaints in which he again claimed that the agency improperly
precluded him from acting as an EEO representative. We also find that
complainant claimed compensatory damages in the instant complaint.
Under these circumstances, we conclude that the instant complaint is not
moot, and that the AJ improperly determined that it should be dismissed
on these grounds
Nonetheless, we find that the complaint, as framed by the AJ, must be
dismissed on the grounds that it states the same claim that is pending
before or has been decided by the agency or Commission. See 29 C.F.R. §
1614.107(a)(1). Specifically, we find that claims 2, 3, 4 and 6, as
set forth above, concern complainant's claim that the agency improperly
denied his request(s) for official time to act as an EEO representative,
and that the Commission previously addressed this same matter in Morman
and Binion. In this regard, we note that if the agency failed to fully
comply with the remand instructions in these cases, complainant's recourse
was to file an enforcement action with the Commission, not a class action
complaint raising this same claim. Therefore, for these reasons, we
AFFIRM the agency's dismissal of claims 2, 3, 4 and 6 pursuant to 29
C.F.R. § 1614.107(a).
EEOC Regulation 29 C.F.R. § 1614.107(a)(8) provides that an agency
shall dismiss an entire complaint that alleges dissatisfaction
with the processing of a previously filed complaint. See Trujillo
v. Department of the Air Force, EEOC Request No. 05950177 (June 13,
1996). The Commission's Management Directive further specifies that if
a complainant is dissatisfied with the processing of his EEO complaint,
he must bring his allegations regarding the processing of this complaint
to the appropriate agency officials. See EEO Management Directive 110,
(MD-110) p.5-25 (November 9, 1999).
Regarding claims 1, 5, 7, 8, and 9, as set forth above, we find that
complainant claims that the agency improperly administers the EEO process
to the detriment of himself as a complainant, as well as to the detriment
of those complainants he represents or even possibly to the detriment of
all federal employees. | Robert L. Morman, et al., v. Department of the Air Force
01996146
January 9, 2002
.
Robert L. Morman, et al.,
Complainant,
v.
Dr. James G. Roche,
Secretary,
Department of the Air Force,
Agency.
Appeal No. 01996146
Agency No. ELOR-96-011
Hearing No. 380-96-8169X
DECISION
Complainant, as class agent, filed a timely appeal with this Commission
from a final agency decision dated June 30, 1999, dismissing his class
action complaint alleging 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 the Rehabilitation Act of 1973,
as amended, 29 U.S.C. § 791, et seq. The Commission accepts the appeal
in accordance with 29 C.F.R. § 1614.405.
The record reflects that complainant is an employee of the agency who
actively serves as an EEO representative in numerous EEO complaints.
Complainant contacted an EEO Counselor on April 16, 1996, and subsequently
filed a formal class complaint on April 22, 1996, claiming discrimination
on the bases of race, color, religion, sex, national origin, age,
disability, and in reprisal for prior protected activity (all bases
unspecified). After obtaining additional information from complainant,
the agency framed the complaint as consisting of the following matters:
The agency changed the procedure for filing EEO complaints without notice;
The agency implemented changes to 29 C.F.R. § 1614.605(a)(b)(c) without
authority, notice and consideration of impact and implementation;<1>
The agency retaliated against complainant [by denying his requests for
official time to act as an EEO representative] because of the number of
EEO complaints he represented;
The agency denied complainant time to represent EEO complaints as set
forth by law, rules and regulations;
The agency attempted to dissuade people from filing complaints;
The agency disallowed EEO complaint representation;
The agency created a conflict of interest within the EEO office by
assignment of counselors who are manipulated;
The agency denied the recognition of a collective bargaining agreement
by defining with prejudice the role of Union Representation in processing
EEO complaints; and
This interference deflects the inquiries of promotion, performance rating
and uneven punishment for like or similar infractions of policies.
The agency transferred the case to an EEOC Administrative Judge (AJ)
to make a decision regarding class certification.
In a May 21, 1999 decision, the AJ construed the instant complaint
as claiming that the agency improperly disqualified complainant
from representing EEO complainants and that the agency continuously
misinterpreted the Commission's regulations on EEO representation. The AJ
also determined that the class complaint did not define a class, but
found that complainant claimed that the agency's improper limitation on
EEO representation affects all federal workers alleging discrimination.
Based on this framing of the complaint, the AJ found that the Commission's
decision in two prior companion cases rendered the instant complaint
moot, precluding the need for a determination on class certification.
Specifically, the AJ found that in Morman v. Department of the Air
Force, EEOC Appeal No. 01963870 (March 17, 1997) (hereinafter referred
to as Morman) and Binion v. Department of the Air Force, EEOC Appeal
No. 01964629 (March 17, 1997), (hereinafter referred to as Binion),<2>
the Commission held that the agency improperly disqualified complainant
as an EEO representative and remanded both cases with the instructions to
the agency to meet with complainant to determine a reasonable amount of
official time to act as an EEO representative in future cases. The AJ
then concluded that the agency should dismiss the class complaint.
In its final decision, the agency adopted the AJ's determination
dismissing the complaint under 29 C.F.R. § 1614.107(a). The agency
additionally determined that none of the criteria necessary for
certification of a class action were satisfied. The agency dismissed
the class complaint, and forwarded complainant's individual complaint
to the EEO office for further processing as appropriate.
Complainant now appeals this determination. In response, the agency
repeats the arguments as set forth in its decision, and additionally
avers that complainant has no standing to bring a complaint on behalf of
those who were purportedly denied the benefit of his EEO representation,
or otherwise disadvantaged by the agency's purportedly improper
administration of the EEO process.
Dismissal of the class complaint on the grounds provided in 29 C.F.R. §
1614.107(a).
Initially, complainant must demonstrate that the class action complaint
constitutes an actionable claim not subject to dismissal on any grounds
provided in 29 C.F.R. § 1614.107(a).
EEOC Regulation 29 C.F.R. § 1614.107(a)(5) provides for the dismissal of a
complaint when the issues raised therein are moot. To determine whether
the issues raised in complainant's complaint are moot, the factfinder
must ascertain whether: (1) it can be said with assurance that there
is no reasonable expectation that the alleged violation will recur; and
(2) interim relief or events have completely and irrevocably eradicated
the effects of the alleged discrimination. See County of Los Angeles
v. Davis, 440 U.S. 625, 631 (1979); Kuo v. Department of the Navy, EEOC
Request No. 05970343 (July 10, 1998). Moreover, the Commission has long
held that where a complainant has requested compensatory damages, the
potential for said damages means that the matter cannot be dismissed as
moot until the agency has at least given the complainant the opportunity
to present evidence supporting his claim for compensatory damages and
then has either awarded the damages or has shown that the complainant was
not entitled to them. Hofmann v. Department of the Navy, EEOC Request
No. 05970962 (October 28, 1999).
Based on our de novo review of this case, we find that the AJ improperly
determined that the instant complaint must be dismissed on the grounds
that it was rendered moot by Morman and Binion. Specifically, we find
that the record contains no evidence describing the agency's compliance
with the Commission's remand instructions in Morman or Binion sufficient
to conclude that there is no reasonable expectation that the alleged
violation will recur or that this remedy irrevocably eradicated the
effects of the alleged discrimination. On the contrary, in footnote
1 of his decision, the AJ indicates that complainant filed several
subsequent complaints in which he again claimed that the agency improperly
precluded him from acting as an EEO representative. We also find that
complainant claimed compensatory damages in the instant complaint.
Under these circumstances, we conclude that the instant complaint is not
moot, and that the AJ improperly determined that it should be dismissed
on these grounds
Nonetheless, we find that the complaint, as framed by the AJ, must be
dismissed on the grounds that it states the same claim that is pending
before or has been decided by the agency or Commission. See 29 C.F.R. §
1614.107(a)(1). Specifically, we find that claims 2, 3, 4 and 6, as
set forth above, concern complainant's claim that the agency improperly
denied his request(s) for official time to act as an EEO representative,
and that the Commission previously addressed this same matter in Morman
and Binion. In this regard, we note that if the agency failed to fully
comply with the remand instructions in these cases, complainant's recourse
was to file an enforcement action with the Commission, not a class action
complaint raising this same claim. Therefore, for these reasons, we
AFFIRM the agency's dismissal of claims 2, 3, 4 and 6 pursuant to 29
C.F.R. § 1614.107(a).
EEOC Regulation 29 C.F.R. § 1614.107(a)(8) provides that an agency
shall dismiss an entire complaint that alleges dissatisfaction
with the processing of a previously filed complaint. See Trujillo
v. Department of the Air Force, EEOC Request No. 05950177 (June 13,
1996). The Commission's Management Directive further specifies that if
a complainant is dissatisfied with the processing of his EEO complaint,
he must bring his allegations regarding the processing of this complaint
to the appropriate agency officials. See EEO Management Directive 110,
(MD-110) p.5-25 (November 9, 1999).
Regarding claims 1, 5, 7, 8, and 9, as set forth above, we find that
complainant claims that the agency improperly administers the EEO process
to the detriment of himself as a complainant, as well as to the detriment
of those complainants he represents or even possibly to the detriment of
all federal employees. Accordingly, we find that these claims must be
dismissed because they constitute spin off complaints under 29 C.F.R. §
1614.107(a)(8). Moreover, to the extent that any or all of the claims set
forth above may be additionally construed as a claim that the agency's
purported improper administration of the EEO process results in federal
employees being deprived of complainant's personal representation,
or that of other EEO representatives, we find that complainant has
no standing regarding this matter. Instead, it is well settled that
claims of improper denial or limitation of EEO representation lie with
the complainant, not the EEO representative. See Ramage v. USPS, EEOC
Request No. 05A10053 (March 23, 2001). Therefore, we find that this
claim must be dismissed for failure to state a claim under 29 C.F.R. §
1614.107(a)(1). Accordingly, for the reasons stated above, we AFFIRM
the agency's dismissal of claims 1, 5, 7, 8, and 9.
Therefore, we find that the agency properly dismissed the instant
complaint pursuant to 29 C.F.R. § 1614.107(a), and we AFFIRM that
determination.
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 9, 2002
__________________
Date
1According to the EEO Counselor's report, complainant claims that the
Union was required to review any changes to his work schedule, and that
the agency failed to confer with the Union when it disqualified him to
act as an EEO representative based on the purported interference with
his work schedule.
2 Morman is complainant's individual complaint, and Binion was filed by
a complainant whom the agency would not allow complainant to represent.
Both complaints were filed in March 1996, one month prior to the filing
of the instant complaint.
| [
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"Binion v. Department of the Air Force, EEOC Appeal No. 01964629 (March 17, 1997)",
"Kuo v. Department of the Navy, EEOC Request No. 05970343 (July 10, 1998)",
"Hofmann v. Department of the Navy, EEOC Request No. 05970962 (Oct... | [
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0.0551917739212513,
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140 | https://www.eeoc.gov/sites/default/files/decisions/2021_08_16/2020001154%20DEC.pdf | 2020001154%20DEC.pdf | PDF | application/pdf | 30,372 | Kylee C.,1 Complainant, v. John E. Whitley, Acting Secretary, Department of the Army, Agency. | December 3, 2019 | Appeal Number: 2020001154
Background:
At the time of events at issue, Complainant was employed by the Agency as a Security Assistant,
GG-0086-05, at the Tripler Army Medical Center in Honolulu, Hawaii. On February 20, 2018, Complainant filed an equal employment opportunity (EEO) complaint
alleging violations of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. § 2000e et seq., and the Age Discrimination in Employment Act of 1967 (ADEA), as
amended, 29 U.S.C. § 621 et seq.
Specifically, she alleged that the Agency discriminated against her based on her race (Asian), sex
(female), age (5 4), and reprisal for prior protected EEO ac tivity when she got a performance
appraisal for the period of October 1, 2016 to September 30, 2017, with a rating of 2 – minimally
successful.
Following an investigation, Complainant requested a hearing before an EEOC AJ. The Agency
filed a motion for summary judgment , which Complainant opposed. The AJ issued a decision by
summary judgment finding no discriminat ion was established . However, the AJ also sanctioned
the Agency for its legal counsel’s actions during the investigation’s fact- finding conf erence, and
for exceeding by about a month and a week the 180-day regulatory deadline to complete the
EEO investigat ion.
As sanction s, the AJ ordered the Agency to do the following: (1) provide two hours of training to
Agency counsel in this case on the r esponsibilities of representing the Agency during the EEO
investigative process, including the requirements of EEOC’ s Equal Employment Opportunity
Management Directive for 29 C.F.R. Part 1614 (EEO MD -110), at 1 – 9, Chap. 1, § IV.D (REV.
Aug. 5, 2015) ; (2) ensure that two hours of training is provided to the DoD Investigations and
Resolutions Directorate EEO investigato r in this case on her responsibilities concerning fact -
finding conferences and guarding against Agency intrusions during the investigative process, including the requirements of EEO MD -110 above ; (3) ensure that the DoD’s A Participant
Guide to Fact -Findin g Conferences in Complaint Investigations is updated to comply with the
part of EEO MD -110 cited above ; (4) replace the Agency counsel in this case with one who did
not participate in the investigative process in this and a specified companion case; and (5 ) email
language specified by the AJ to t he Agency’s Director of EEO that reiterates the 180 -day
deadline for completing investigations and admonishes the Agency for failure to meet the
deadline in this case.
The Agency’s final action accepted the findi ng of no discrimination but rejected the finding that
there was a conflict of interest and rejected all sanctions.
Legal Analysis:
the Commission affirm its rejection of part of a n EEOC
Administrative Judge's (AJ) decision that sanctioned the Agency. On January 10, 2020,
Complainant filed a timely cross appeal requesting that the Commission reverse the remain der of
the AJ’s decision finding of no discrimination.
BACKGROUND
At the time of events at issue, Complainant was employed by the Agency as a Security Assistant,
GG-0086-05, at the Tripler Army Medical Center in Honolulu, Hawaii. On February 20, 2018, Complainant filed an equal employment opportunity (EEO) complaint
alleging violations of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. § 2000e et seq., and the Age Discrimination in Employment Act of 1967 (ADEA), as
amended, 29 U.S.C. § 621 et seq.
Specifically, she alleged that the Agency discriminated against her based on her race (Asian), sex
(female), age (5 4), and reprisal for prior protected EEO ac tivity when she got a performance
appraisal for the period of October 1, 2016 to September 30, 2017, with a rating of 2 – minimally
successful.
Following an investigation, Complainant requested a hearing before an EEOC AJ. The Agency
filed a motion for summary judgment , which Complainant opposed. The AJ issued a decision by
summary judgment finding no discriminat ion was established . However, the AJ also sanctioned
the Agency for its legal counsel’s actions during the investigation’s fact- finding conf erence, and
for exceeding by about a month and a week the 180-day regulatory deadline to complete the
EEO investigat ion.
As sanction s, the AJ ordered the Agency to do the following: (1) provide two hours of training to
Agency counsel in this case on the r esponsibilities of representing the Agency during the EEO
investigative process, including the requirements of EEOC’ s Equal Employment Opportunity
Management Directive for 29 C.F.R. Part 1614 (EEO MD -110), at 1 – 9, Chap. 1, § IV.D (REV.
Aug. 5, 2015) ; (2) ensure that two hours of training is provided to the DoD Investigations and
Resolutions Directorate EEO investigato r in this case on her responsibilities concerning fact -
finding conferences and guarding against Agency intrusions during the investigative process, including the requirements of EEO MD -110 above ; (3) ensure that the DoD’s A Participant
Guide to Fact -Findin g Conferences in Complaint Investigations is updated to comply with the
part of EEO MD -110 cited above ; (4) replace the Agency counsel in this case with one who did
not participate in the investigative process in this and a specified companion case; and (5 ) email
language specified by the AJ to t he Agency’s Director of EEO that reiterates the 180 -day
deadline for completing investigations and admonishes the Agency for failure to meet the
deadline in this case.
The Agency’s final action accepted the findi ng of no discrimination but rejected the finding that
there was a conflict of interest and rejected all sanctions.
ANALYSIS AND FINDINGS
Performance Appraisal – Complainant’s Cross Appeal
The Commission's regulations allow an AJ to issue a decision wi thout a hearing when he or she
finds that there is no genuine issue of material fact. 29 C.F.R. § 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 a ppropriate 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 court’s 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 summa ry jud gment stage and all
justifiable inferences must be drawn in the non -moving party’s favor. Id. at 255.
An issue of fact is "genuine" if the evidence is such that a reasonable fact finder could find in
favor of the non- moving party. Celotex v. Catret t, 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. If a case can only be resolved by weighing conflicting
evidence, issuing a de cision without holding a hearing is not appropriate.
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 e stablish that such facts are material under appli cable law. While C omplainant
has, in a very general sense, asserted that facts are in dispute, s he has failed to point with any
specificity to particular evidence in the investigative file or other evidence of record that
indicates such a dispute. For th e reasons discussed below, we find that, even construing any
inferences raised by the undisputed facts in favor of Com plainant, a reasonable fact -finder could
not find in her favor.
To prevail in a disparat e treatment claim such as this, Complainant must satisfy the three -part
evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411
U.S. 792 (1973). She m ust generally establish a prima facie case by d emonstrating that s he wa s
subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Constr. Co. v. Waters , 438 U.S. 567, 576 (1978). The prima facie
inquiry may be dispensed with in this case, h owever, since the Agency has articulated legitimate
and nondiscriminatory reasons for its conduct. U.S. Postal Serv. Bd. of Governors v. Aikens ,
460 U.S. 711, 713- 17 (1983) . To ultimately prevail, Complainant must prove, by a
preponderance of the evidence , that the Agency’s expl anation is a pretext for discrimination. St.
Mary's Honor Ctr. v. Hicks , 509 U.S. 502, 519 (1993).
Here, the evidence of record fully supports the AJ’s | Kylee C.,1
Complainant,
v.
John E. Whitley,
Acting Secretary,
Department of the Army,
Agency.
Appeal No. 2020001154
Hearing No. 480-2020-00029X
Agency No. ARSHAFT ER18JAN00087
DECISION
Simultaneously with its December 3, 2019 final order, the Agency filed a timely appeal with the
Equal Employment Opportunity Commission (EEOC or Commission) pursuant to 29 C.F.R. §
1614.403(a). T he Agency requests that the Commission affirm its rejection of part of a n EEOC
Administrative Judge's (AJ) decision that sanctioned the Agency. On January 10, 2020,
Complainant filed a timely cross appeal requesting that the Commission reverse the remain der of
the AJ’s decision finding of no discrimination.
BACKGROUND
At the time of events at issue, Complainant was employed by the Agency as a Security Assistant,
GG-0086-05, at the Tripler Army Medical Center in Honolulu, Hawaii. On February 20, 2018, Complainant filed an equal employment opportunity (EEO) complaint
alleging violations of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. § 2000e et seq., and the Age Discrimination in Employment Act of 1967 (ADEA), as
amended, 29 U.S.C. § 621 et seq.
Specifically, she alleged that the Agency discriminated against her based on her race (Asian), sex
(female), age (5 4), and reprisal for prior protected EEO ac tivity when she got a performance
appraisal for the period of October 1, 2016 to September 30, 2017, with a rating of 2 – minimally
successful.
Following an investigation, Complainant requested a hearing before an EEOC AJ. The Agency
filed a motion for summary judgment , which Complainant opposed. The AJ issued a decision by
summary judgment finding no discriminat ion was established . However, the AJ also sanctioned
the Agency for its legal counsel’s actions during the investigation’s fact- finding conf erence, and
for exceeding by about a month and a week the 180-day regulatory deadline to complete the
EEO investigat ion.
As sanction s, the AJ ordered the Agency to do the following: (1) provide two hours of training to
Agency counsel in this case on the r esponsibilities of representing the Agency during the EEO
investigative process, including the requirements of EEOC’ s Equal Employment Opportunity
Management Directive for 29 C.F.R. Part 1614 (EEO MD -110), at 1 – 9, Chap. 1, § IV.D (REV.
Aug. 5, 2015) ; (2) ensure that two hours of training is provided to the DoD Investigations and
Resolutions Directorate EEO investigato r in this case on her responsibilities concerning fact -
finding conferences and guarding against Agency intrusions during the investigative process, including the requirements of EEO MD -110 above ; (3) ensure that the DoD’s A Participant
Guide to Fact -Findin g Conferences in Complaint Investigations is updated to comply with the
part of EEO MD -110 cited above ; (4) replace the Agency counsel in this case with one who did
not participate in the investigative process in this and a specified companion case; and (5 ) email
language specified by the AJ to t he Agency’s Director of EEO that reiterates the 180 -day
deadline for completing investigations and admonishes the Agency for failure to meet the
deadline in this case.
The Agency’s final action accepted the findi ng of no discrimination but rejected the finding that
there was a conflict of interest and rejected all sanctions.
ANALYSIS AND FINDINGS
Performance Appraisal – Complainant’s Cross Appeal
The Commission's regulations allow an AJ to issue a decision wi thout a hearing when he or she
finds that there is no genuine issue of material fact. 29 C.F.R. § 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 a ppropriate 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 court’s 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 summa ry jud gment stage and all
justifiable inferences must be drawn in the non -moving party’s favor. Id. at 255.
An issue of fact is "genuine" if the evidence is such that a reasonable fact finder could find in
favor of the non- moving party. Celotex v. Catret t, 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. If a case can only be resolved by weighing conflicting
evidence, issuing a de cision without holding a hearing is not appropriate.
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 e stablish that such facts are material under appli cable law. While C omplainant
has, in a very general sense, asserted that facts are in dispute, s he has failed to point with any
specificity to particular evidence in the investigative file or other evidence of record that
indicates such a dispute. For th e reasons discussed below, we find that, even construing any
inferences raised by the undisputed facts in favor of Com plainant, a reasonable fact -finder could
not find in her favor.
To prevail in a disparat e treatment claim such as this, Complainant must satisfy the three -part
evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411
U.S. 792 (1973). She m ust generally establish a prima facie case by d emonstrating that s he wa s
subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Constr. Co. v. Waters , 438 U.S. 567, 576 (1978). The prima facie
inquiry may be dispensed with in this case, h owever, since the Agency has articulated legitimate
and nondiscriminatory reasons for its conduct. U.S. Postal Serv. Bd. of Governors v. Aikens ,
460 U.S. 711, 713- 17 (1983) . To ultimately prevail, Complainant must prove, by a
preponderance of the evidence , that the Agency’s expl anation is a pretext for discrimination. St.
Mary's Honor Ctr. v. Hicks , 509 U.S. 502, 519 (1993).
Here, the evidence of record fully supports the AJ’s conclusion that the responsible management officials articulated legitimate , non-discriminatory reaso ns for the performance rating issued,
which Complainant failed to prove, by a preponderance of the evidence, was a pretext masking discrimination or retaliatory animus.
For new hires, Complainant conducted in- processing, which included initiating backgro und
investigations, updating personnel records, and fingerprinting . Citing to the record, the AJ found
that during the appraisal period, Complainant’s performance of her s ecurity functions generated
multiple complaints by customers and coworkers. Specifical ly, customers variously complained
of major delays caused by Complainant being disorganized, distracted , going off -topic and
having a bad attitude to the point of dysfunction, being told to go away and threaten ing to revoke
the customer’s clearance, and being so rude that a customer complained of feeling attacked and
appalled . Two coworkers , who were temporarily assigned to assist Compla inant , variously
reported that she was disorganized , her files were in dis array, and she only did a small fraction of
her work due to prolonged discussion about her personal life with numerous others who stopped
by.
One of the temporary assistants r eported that Complainant treated her customers with disrespect .
Some examples were saying within hearing distance of a customer who interrupted her with a
question, “who does she think she is… am I supposed to drop what I am doing to wait on he r
when I have a customer ”, and another time when a sked if she was ready to see a customer barked
“I guess so” - indicating she did not want to be bothered. This assistant reported that
Complainant encouraged her to do less work, did not act with any sense of urgency as numerous
customers sat in the queue, and took long lunches and breaks . She also reported that
Complainant lost a huge stack of papers on contractors containing their personally protected
information (PII) and fingerprints which delayed their start dates and took no action to fix th e
situation . Instead, the temporary assistant took care of this, including taking new fingerprints .
As a result of the above -described incidents , management witnesses explained Complainant was
rated minimally successful in accountability, communication, and collaboration. Among other things, Complainant’s appraisal specifically referred to her loss o f PII. Th e AJ noted
Complainant did not contest the loss , or show she was disparately treated.
On appeal, Complainant, via counsel, provides no argument supporting a reversal of the AJ’s conclusion that Agency witnesses provided legitimate, non- discrimin atory rea sons for the
disputed performance appraisal, and Complainant did not meet her evidentiary burden of proving pretext. We agree with the AJ that Complainant did not prove discrimination on any bas is.
Sanctions – Agency’s Appeal
It is undisputed that in the present case the Army delegated the EEO investigation to the
Department of Defense (DoD) , Investigations and Resolutions Directorate, which is a separate
Defense Department entity from the Army .
The Directorate opened the investigation with an Intake Services Assistant making a tailored and
comprehensive request to the Agency for relevant documents . Report of Investigation (ROI),
Sec. 7.6, at Bates No s 568 – 569. Following receipt of the documents, the assigned Directorate
investigator chose t o hold a transcribed Fact -Finding Conference (F FC). The investigator also
gave both parties an opportunity to submit additional documentation. Id. , at Bates No s. 581 –
582.
Complainant, her supervisor, and two human resources specialists (hereinafter all referred to as
witnesses) gave transcribed statements at the FFC. Complainant was represented by legal
counsel at the F FC, as was the Agency. The transcript reveals that the investigator elicited
statement s from each witness using a question and answer for mat. After eliciting a statement
from an individual witness, the investigator gave counsel for Complainant an opportunity to have
the witness add to their statement by asking follow -up questions , and then gave Agency counsel
the same opportunity. See DoD’ s A Participant Guide to Fact -Finding Conferences in
Complaint Investigations .
Shortly after receiving Complainant’s hearing request and with no prompting from the parties ,
the AJ issued an Order to Show Cause requiring the Age ncy to show that the FFC pro cess used
had not violate d EEO MD -110 and various cited EEOC cases which forbid the intrusion of the
Agency’s defensive function into the EEO investigative process. The AJ identified the
participation of Agency counsel in the F FC as potentially intrusive, a s well as the fact tha t the
same Agency attorney who represented the Age ncy at the FFC did so during the AJ hearing
process. He warned that failure to show cause could result in various sanctions.
In response to the Order to Show Cause, the Agency argue d that since the D oD Investigations
and Resolutions Directorate is fully in dependent and separate from the Army and decides which
investigator to assign and how to conduct the investigation without Agency supervision, this
separates the Agency’s represent ative from the EEO investigatory functions. It argued that while
the transcript showed the Agency counsel actively participated in the FFC, this did not constitute
an improper intrusion of the Agency’s defensive function into the EE O investigation because the
investigator was fully independent from the Agency and its counsel, and all parties were treated
equally. The Agency also argued that using the same person to represent the Agency at the FFC
and before the AJ did not constitute an intrusion because the investigator was fully independent.
The Agency conceded that it had exceeded the 180- day regulatory deadline for completing the
investigation by about a month and a week. It a rgued that this was due to staffing and resourcing
issues at the DoD’s Investi gations and Resolutions Directorate, and affirmative steps were being
taken to remedy the situation. It represented that that this was supported by a declaration, to
which the AJ later referred.
After receipt of the Agency’s arguments, the AJ issued a dec ision concluding that the
investi gative function is the responsibility of the Agency regardless of the entity that actually
perform ed the investigation and the Agency cannot use the DoD Investigations and Resolutions
Directorate as a shield to “launder ” improper intrusions/actions by Agency representatives. The
AJ identified Agency counsel ’s intrusions at the F FC as “ cross examining” Complainant (asking
her questions) , “speaking objections” ( asking if a comparator’s appraisal was relevant) ,
comment ing on testimony ( apparently by saying it was okay to allow leeway with hearsay) , and
“directing ” the method of providing documents to the investigator (asking the human resources
witness to coordinate gathering the documents requested by the investigator and Compl ainant’s
attorney so that multiple Agency staff were not fulfilling the same document request ), which the
AJ viewed as potentially limiting the gathering of relevant documents .
The AJ also identified as potential Agency intrusions actions by Complainant ’s attorney at the
FFC – her questioning witnesses and making “objection[s] ” based on hearsay and relevance. The
AJ found that the actions of Complainant’s attorney were a foreseeable result of convening the
FFC without appropriate safeguards and that the investigator – and therefore the Agency – failed
to regain control of the FFC and return it to its investigative function, but rather allowed to
devolve to a “quasi -mini-hearing ” by permitting the representatives of Comp lainant and the
Agency to question w itnesses as if at a trial.
In sum, the AJ concluded that Agency counsel ’s participation in the FFC and before the AJ
violated the requirement that the Agency keep its investigatory and defensive functions separate.
Likewise, the AJ found that DoD’s A Par ticipant’s Guide to Fact -Finding Conferences in
Complaint Investigations needed to be updated to ban such intrusions . In support of the above
findings, the AJ cited to language in Annalee D. v. General Services Administration (GSA) ,
EEOC Appeal No. 0120170991 (Oct. 10, 2018) that the “agency representative should not have a
role in shaping the testimony of witnesses or the evidence gathered by t he EEO investigator ,”
whic h occurred in that case when agency counsel accompan ied a supervisor accused of
discrimi nation to an EEO investigative interview.
The AJ also found that the Agency’s missing the 180- day deadline to complete the EEO
investigation had a negative effect on the integrity of the EEO process, albeit this was partially
mitigated by the representat ion by DoD Investigations and Resolutions Directorate regarding the
efforts it wa s taking to avoi d similar delays in other cases.
As already noted, the AJ sanctioned the Agency by ordering it to do the following: (1) provide
two hours of training to Agency counsel in this case on the responsibilities of representing the
Agency during the EEO investigative process , inclu ding the requirements of EEO MD -110, at 1
– 9, Chap. 1, § IV.D; (2) ensure that two hours of training is provided to the DoD Investigatio ns
and Resolutions Directorate EEO investigator in this case on her responsibilities concerning
FFCs and guarding against Agency intrusions during the investigative process , including the
requirements of EEO MD -110 above ; (3) ensure that the DoD’s A Partic ipant Guide to Fact -
Finding Conferences in Complaint Investigations is updated to comply with the part of EEO
MD-110 cited above ; (4) replace the Agency counsel in this case with one who did not
participate in the investigative process in this and a specif ied companion case ; and (5) email
language specified by the AJ to t he Agency’s Director of EEO that reiterat es the 180 day
deadline above and admonishing the Agency for failure to meet the deadline in this case.
On appeal, the Agency reiterates arguments it made below. It also argues that shortly after the AJ
issued his decision, the Commission granted GSA’s request to reconsider the decision in Annalee
D., upon which the AJ relied, vacating the s anctions and modifying the decision. See Annalee D.
v. GSA, EEOC Request No. 2019000778 (Nov. 27, 2019). Applying the modified language in
Request No. 2019000778, the Agency argues that its defensive function did not intrude on the EEO investigati on in this case. It also argues that a sanction is not warranted in t his case for
missing the 180- day regulatory deadline by a little over a month.
In opposition to the appeal, Complainant argues that that the AJ’s sanctions should be upheld.
Essentially, the AJ found that the DoD’s Investigations and Resolutions Direc torate investigator
holding a “quasi -mini- hearing” (the FFC) with the participation of both Agency and
Complainant’s legal counsel was an intrusion of the Agency’s defensive function into the EEO
investigation violating EEO MD -110, at 1 – 9, Chap. 1, § IV. D. We disagree.
The Commission’s Equal Employment Opportunity Management Directive for 29 C.F.R. Part
1614 (EEO MD -110), at 1 – 9, Chap. 1, § IV.D ( REV. Aug. 5, 2015) requires that :
Heads of agencies must manage the dual obligations of carrying out fai r and
impartial investigations of complaints … [of] discrimination … and defending the
agency against claims of employment discrimination…. … [A] clear separation between the agency’s EEO complaint program and the
agency’s defensive function is thus the ess ential underpinning of a fair and
impartial investigation, enhancing the … integrity of the EEO complaints
process….
EEO MD -110 goes on to explicitly permit an EEO investigator to collect and discover factual
information by being “a presiding official at a fact-finding conference”. Id., at 6- 6, Chap. 6, §
V.B. See also , 29 C.F.R. § 1614.108(b). The “presiding” of an investigator at an FFC anticipates
that someone other than the investigator is asking questions . The most obvious “ someone ” is the
parties. Thus, the question to be determined is whether or not the participation of legal counsel
from eith er party should be allowed at a fact -finding conference.
As an initial matter, w e find that permitting Complainant’s counsel at the F FC to ask witnesses
follow -up questions after the EEO investigator elicited a statement from each witness , as well as
questioning the admissibility of testimony, did not constitute an improper intrusion o f the
Agency’s defensive function into the EEO investigation. In sum , we fail to see how
Complainant’s attorney has anything to do with the Agency’s defensive function. Moreover, our
regulations explicitly provide that at “any stage in the processing of a complaint . . . the complainant shall have the right to be accompanied, repres ented, and advised by a representative
of complainant’s choice.”
With regard to the participation of Agency counsel in a fact -finding conference, we look to
Annalee D. v. GSA , EEOC Request No. 2019000778 (Nov. 27, 2019) , issued after the AJ’s
decision, which contains an extensive discussion of the Agency attorney intrusion issues. In
recognizing the disparate yet vital responsibilities of the agency’s EEO office and agency defense counsel, EEO MD -110, at 1 – 9, Chap. 1, § IV.D recognize d these entities wi ll inev itably
interact with each other. EEO MD-110 sets out the parameters for these interactions and seeks to
ensure that neither entity inappropriately interferes with the functions of the other. The
Commission found that its prior Annalee D. decision set forth an absolute rule prohibiting
agency defense counsel from participating in the pre -hearing stages of EEO matters, including
the investi gation . In reconsidering this decision, the Commission found nothing in MD -110
explicitly bans agency defense coun sel from assisting an agency manager in the preparation of
their affidavit during an investigation or act ing as a legal representative for the Agency under the
appropriate circumstances. Rather, the issu e of utmost concern to the Commission is whether the
actions of agency defense counsel improperly interfered with or negatively influenced the EEO
process, such as formulating the questions asked by the investigator, altering or withholding
statements/reco rds from management officials/witnesses, instructing officials to make untrue
statements, or changing any affidavit without the affiant’s approval of such changes, and limiting
the individuals whom the investigator can interview . Id.
Applying these stand ards to the instant case, we find that the structure of the DoD Directorate’s
FFC, as set forth in its participant’ s guide and implemented here, does not breach the
requirement that the Agency maintain a proper separation between the Agency’s defensive and
EEO investigatory functions. As ruled in EEOC Reque st No. 2019000778, there is no absolute
rule that prohibits agency defense counsel from participating in the pre -hearing stages of EEO
matters , including the investigation . Agency counsel and investigators are cautioned however
that the decision in Annalee D., Request 2019000778, limited that participation. The agency’s
own guida nce on FFCs explicitly states that the investigator “conducts and controls ” the F FC and
Agency counsel ’s role is limited to soliciting clarifying information from witnesses called a nd
questioned by the investigator as deemed appropriate by the investigator . The investigator and
EEO officials maintain primary responsibility for developing the impartial record necessary for a
final agency decision. If such a record is not developed an d a hearing before a n EEOC AJ is
requested, the Commission’s regulations provide that the AJ will supplement the record. In this
appeal, however, the AJ and the Commission determined that the record , as developed during the
investigation, was sufficiently developed for summary judgment.
The Commission ’s determination concerning possible intrusion by Agency counsel must be
made on a case- by-case basis. We find no evidence of improper intrusion by the Agency’s legal
counsel at th is FFC . The record, which i ncludes the transcript of the F FC, shows that none of the
actions by Agency counsel direct ed, control led, interfered with, or overrule d the investigator.
The AJ’s finding to the contrary does not a ccount for all the work done by DoD’s Directorate
prior to the FFC to secure the relevant comprehensive docu ment s, soliciting both parti es to name
relevant witnesses with a brief explanation of their expected testimony, and giving both parties
the opportunity to submit additional documentation. It also does not ac count for the investigator
at the FFC first eliciting a statement from each witness using a question and answer format,
thereby creating a record regarding that witness ’ testimony before giving legal counsels for
Complainant and the Agency the opportunity to ask follow -up questions. Likewise, we disagree
with the AJ that Agency counsel’s “speaking objections” (rhetorically asking if the comparator’s appraisal was relevant), commenting on testimony (apparently suggesting that it was okay to
allow lee way wit h hearsay), or attempting to facilitate the provision of documents to the
investigator (asking the human resources witness to coordinate gathering the documents requested by the investigator and Complainant’s attorney) were intrusion s of the Agency’s
defen sive fun ction into its EEO program . At any point during the F FC, the investigator could
have shut either counsel down if their conduct interfered with the development of an impartial
record.
The Agency concedes that it exceeded th e 180- day regulatory dea dline to complete the EEO
investigation by about a month and a week. Given the length of this delay together with the mitigating circumstance s cited by the AJ, we find that this alone, without other sanctionable
conduct, does not warrant a sanction in this case.
CONCLUSION
The Agency’s final action fully implementing the AJ’s finding of no discrimination is
AFFIRMED. The Agency’s final action rejecting all of the AJ’s sanctions is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0620)
The Co mmission 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 interpr etation 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 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, 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 opposi tion 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 th e
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 req uests 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 he r full na me 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 rec onsider a nd 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 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 reque sts 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 (ple ase 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, 2021
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141 | https://www.eeoc.gov/sites/default/files/decisions/2021_06_08/2020001154.pdf | 2020001154.pdf | PDF | application/pdf | 30,372 | Kylee C.,1 Complainant, v. John E. Whitley, Acting Secretary, Department of the Army, Agency. | December 3, 2019 | Appeal Number: 2020001154
Background:
At the time of events at issue, Complainant was employed by the Agency as a Security Assistant,
GG-0086-05, at the Tripler Army Medical Center in Honolulu, Hawaii. On February 20, 2018, Complainant filed an equal employment opportunity (EEO) complaint
alleging violations of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. § 2000e et seq., and the Age Discrimination in Employment Act of 1967 (ADEA), as
amended, 29 U.S.C. § 621 et seq.
Specifically, she alleged that the Agency discriminated against her based on her race (Asian), sex
(female), age (5 4), and reprisal for prior protected EEO ac tivity when she got a performance
appraisal for the period of October 1, 2016 to September 30, 2017, with a rating of 2 – minimally
successful.
Following an investigation, Complainant requested a hearing before an EEOC AJ. The Agency
filed a motion for summary judgment , which Complainant opposed. The AJ issued a decision by
summary judgment finding no discriminat ion was established . However, the AJ also sanctioned
the Agency for its legal counsel’s actions during the investigation’s fact- finding conf erence, and
for exceeding by about a month and a week the 180-day regulatory deadline to complete the
EEO investigat ion.
As sanction s, the AJ ordered the Agency to do the following: (1) provide two hours of training to
Agency counsel in this case on the r esponsibilities of representing the Agency during the EEO
investigative process, including the requirements of EEOC’ s Equal Employment Opportunity
Management Directive for 29 C.F.R. Part 1614 (EEO MD -110), at 1 – 9, Chap. 1, § IV.D (REV.
Aug. 5, 2015) ; (2) ensure that two hours of training is provided to the DoD Investigations and
Resolutions Directorate EEO investigato r in this case on her responsibilities concerning fact -
finding conferences and guarding against Agency intrusions during the investigative process, including the requirements of EEO MD -110 above ; (3) ensure that the DoD’s A Participant
Guide to Fact -Findin g Conferences in Complaint Investigations is updated to comply with the
part of EEO MD -110 cited above ; (4) replace the Agency counsel in this case with one who did
not participate in the investigative process in this and a specified companion case; and (5 ) email
language specified by the AJ to t he Agency’s Director of EEO that reiterates the 180 -day
deadline for completing investigations and admonishes the Agency for failure to meet the
deadline in this case.
The Agency’s final action accepted the findi ng of no discrimination but rejected the finding that
there was a conflict of interest and rejected all sanctions.
Legal Analysis:
the Commission affirm its rejection of part of a n EEOC
Administrative Judge's (AJ) decision that sanctioned the Agency. On January 10, 2020,
Complainant filed a timely cross appeal requesting that the Commission reverse the remain der of
the AJ’s decision finding of no discrimination.
BACKGROUND
At the time of events at issue, Complainant was employed by the Agency as a Security Assistant,
GG-0086-05, at the Tripler Army Medical Center in Honolulu, Hawaii. On February 20, 2018, Complainant filed an equal employment opportunity (EEO) complaint
alleging violations of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. § 2000e et seq., and the Age Discrimination in Employment Act of 1967 (ADEA), as
amended, 29 U.S.C. § 621 et seq.
Specifically, she alleged that the Agency discriminated against her based on her race (Asian), sex
(female), age (5 4), and reprisal for prior protected EEO ac tivity when she got a performance
appraisal for the period of October 1, 2016 to September 30, 2017, with a rating of 2 – minimally
successful.
Following an investigation, Complainant requested a hearing before an EEOC AJ. The Agency
filed a motion for summary judgment , which Complainant opposed. The AJ issued a decision by
summary judgment finding no discriminat ion was established . However, the AJ also sanctioned
the Agency for its legal counsel’s actions during the investigation’s fact- finding conf erence, and
for exceeding by about a month and a week the 180-day regulatory deadline to complete the
EEO investigat ion.
As sanction s, the AJ ordered the Agency to do the following: (1) provide two hours of training to
Agency counsel in this case on the r esponsibilities of representing the Agency during the EEO
investigative process, including the requirements of EEOC’ s Equal Employment Opportunity
Management Directive for 29 C.F.R. Part 1614 (EEO MD -110), at 1 – 9, Chap. 1, § IV.D (REV.
Aug. 5, 2015) ; (2) ensure that two hours of training is provided to the DoD Investigations and
Resolutions Directorate EEO investigato r in this case on her responsibilities concerning fact -
finding conferences and guarding against Agency intrusions during the investigative process, including the requirements of EEO MD -110 above ; (3) ensure that the DoD’s A Participant
Guide to Fact -Findin g Conferences in Complaint Investigations is updated to comply with the
part of EEO MD -110 cited above ; (4) replace the Agency counsel in this case with one who did
not participate in the investigative process in this and a specified companion case; and (5 ) email
language specified by the AJ to t he Agency’s Director of EEO that reiterates the 180 -day
deadline for completing investigations and admonishes the Agency for failure to meet the
deadline in this case.
The Agency’s final action accepted the findi ng of no discrimination but rejected the finding that
there was a conflict of interest and rejected all sanctions.
ANALYSIS AND FINDINGS
Performance Appraisal – Complainant’s Cross Appeal
The Commission's regulations allow an AJ to issue a decision wi thout a hearing when he or she
finds that there is no genuine issue of material fact. 29 C.F.R. § 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 a ppropriate 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 court’s 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 summa ry jud gment stage and all
justifiable inferences must be drawn in the non -moving party’s favor. Id. at 255.
An issue of fact is "genuine" if the evidence is such that a reasonable fact finder could find in
favor of the non- moving party. Celotex v. Catret t, 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. If a case can only be resolved by weighing conflicting
evidence, issuing a de cision without holding a hearing is not appropriate.
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 e stablish that such facts are material under appli cable law. While C omplainant
has, in a very general sense, asserted that facts are in dispute, s he has failed to point with any
specificity to particular evidence in the investigative file or other evidence of record that
indicates such a dispute. For th e reasons discussed below, we find that, even construing any
inferences raised by the undisputed facts in favor of Com plainant, a reasonable fact -finder could
not find in her favor.
To prevail in a disparat e treatment claim such as this, Complainant must satisfy the three -part
evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411
U.S. 792 (1973). She m ust generally establish a prima facie case by d emonstrating that s he wa s
subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Constr. Co. v. Waters , 438 U.S. 567, 576 (1978). The prima facie
inquiry may be dispensed with in this case, h owever, since the Agency has articulated legitimate
and nondiscriminatory reasons for its conduct. U.S. Postal Serv. Bd. of Governors v. Aikens ,
460 U.S. 711, 713- 17 (1983) . To ultimately prevail, Complainant must prove, by a
preponderance of the evidence , that the Agency’s expl anation is a pretext for discrimination. St.
Mary's Honor Ctr. v. Hicks , 509 U.S. 502, 519 (1993).
Here, the evidence of record fully supports the AJ’s | Kylee C.,1
Complainant,
v.
John E. Whitley,
Acting Secretary,
Department of the Army,
Agency.
Appeal No. 2020001154
Hearing No. 480-2020-00029X
Agency No. ARSHAFT ER18JAN00087
DECISION
Simultaneously with its December 3, 2019 final order, the Agency filed a timely appeal with the
Equal Employment Opportunity Commission (EEOC or Commission) pursuant to 29 C.F.R. §
1614.403(a). T he Agency requests that the Commission affirm its rejection of part of a n EEOC
Administrative Judge's (AJ) decision that sanctioned the Agency. On January 10, 2020,
Complainant filed a timely cross appeal requesting that the Commission reverse the remain der of
the AJ’s decision finding of no discrimination.
BACKGROUND
At the time of events at issue, Complainant was employed by the Agency as a Security Assistant,
GG-0086-05, at the Tripler Army Medical Center in Honolulu, Hawaii. On February 20, 2018, Complainant filed an equal employment opportunity (EEO) complaint
alleging violations of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. § 2000e et seq., and the Age Discrimination in Employment Act of 1967 (ADEA), as
amended, 29 U.S.C. § 621 et seq.
Specifically, she alleged that the Agency discriminated against her based on her race (Asian), sex
(female), age (5 4), and reprisal for prior protected EEO ac tivity when she got a performance
appraisal for the period of October 1, 2016 to September 30, 2017, with a rating of 2 – minimally
successful.
Following an investigation, Complainant requested a hearing before an EEOC AJ. The Agency
filed a motion for summary judgment , which Complainant opposed. The AJ issued a decision by
summary judgment finding no discriminat ion was established . However, the AJ also sanctioned
the Agency for its legal counsel’s actions during the investigation’s fact- finding conf erence, and
for exceeding by about a month and a week the 180-day regulatory deadline to complete the
EEO investigat ion.
As sanction s, the AJ ordered the Agency to do the following: (1) provide two hours of training to
Agency counsel in this case on the r esponsibilities of representing the Agency during the EEO
investigative process, including the requirements of EEOC’ s Equal Employment Opportunity
Management Directive for 29 C.F.R. Part 1614 (EEO MD -110), at 1 – 9, Chap. 1, § IV.D (REV.
Aug. 5, 2015) ; (2) ensure that two hours of training is provided to the DoD Investigations and
Resolutions Directorate EEO investigato r in this case on her responsibilities concerning fact -
finding conferences and guarding against Agency intrusions during the investigative process, including the requirements of EEO MD -110 above ; (3) ensure that the DoD’s A Participant
Guide to Fact -Findin g Conferences in Complaint Investigations is updated to comply with the
part of EEO MD -110 cited above ; (4) replace the Agency counsel in this case with one who did
not participate in the investigative process in this and a specified companion case; and (5 ) email
language specified by the AJ to t he Agency’s Director of EEO that reiterates the 180 -day
deadline for completing investigations and admonishes the Agency for failure to meet the
deadline in this case.
The Agency’s final action accepted the findi ng of no discrimination but rejected the finding that
there was a conflict of interest and rejected all sanctions.
ANALYSIS AND FINDINGS
Performance Appraisal – Complainant’s Cross Appeal
The Commission's regulations allow an AJ to issue a decision wi thout a hearing when he or she
finds that there is no genuine issue of material fact. 29 C.F.R. § 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 a ppropriate 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 court’s 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 summa ry jud gment stage and all
justifiable inferences must be drawn in the non -moving party’s favor. Id. at 255.
An issue of fact is "genuine" if the evidence is such that a reasonable fact finder could find in
favor of the non- moving party. Celotex v. Catret t, 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. If a case can only be resolved by weighing conflicting
evidence, issuing a de cision without holding a hearing is not appropriate.
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 e stablish that such facts are material under appli cable law. While C omplainant
has, in a very general sense, asserted that facts are in dispute, s he has failed to point with any
specificity to particular evidence in the investigative file or other evidence of record that
indicates such a dispute. For th e reasons discussed below, we find that, even construing any
inferences raised by the undisputed facts in favor of Com plainant, a reasonable fact -finder could
not find in her favor.
To prevail in a disparat e treatment claim such as this, Complainant must satisfy the three -part
evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411
U.S. 792 (1973). She m ust generally establish a prima facie case by d emonstrating that s he wa s
subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Constr. Co. v. Waters , 438 U.S. 567, 576 (1978). The prima facie
inquiry may be dispensed with in this case, h owever, since the Agency has articulated legitimate
and nondiscriminatory reasons for its conduct. U.S. Postal Serv. Bd. of Governors v. Aikens ,
460 U.S. 711, 713- 17 (1983) . To ultimately prevail, Complainant must prove, by a
preponderance of the evidence , that the Agency’s expl anation is a pretext for discrimination. St.
Mary's Honor Ctr. v. Hicks , 509 U.S. 502, 519 (1993).
Here, the evidence of record fully supports the AJ’s conclusion that the responsible management officials articulated legitimate , non-discriminatory reaso ns for the performance rating issued,
which Complainant failed to prove, by a preponderance of the evidence, was a pretext masking discrimination or retaliatory animus.
For new hires, Complainant conducted in- processing, which included initiating backgro und
investigations, updating personnel records, and fingerprinting . Citing to the record, the AJ found
that during the appraisal period, Complainant’s performance of her s ecurity functions generated
multiple complaints by customers and coworkers. Specifical ly, customers variously complained
of major delays caused by Complainant being disorganized, distracted , going off -topic and
having a bad attitude to the point of dysfunction, being told to go away and threaten ing to revoke
the customer’s clearance, and being so rude that a customer complained of feeling attacked and
appalled . Two coworkers , who were temporarily assigned to assist Compla inant , variously
reported that she was disorganized , her files were in dis array, and she only did a small fraction of
her work due to prolonged discussion about her personal life with numerous others who stopped
by.
One of the temporary assistants r eported that Complainant treated her customers with disrespect .
Some examples were saying within hearing distance of a customer who interrupted her with a
question, “who does she think she is… am I supposed to drop what I am doing to wait on he r
when I have a customer ”, and another time when a sked if she was ready to see a customer barked
“I guess so” - indicating she did not want to be bothered. This assistant reported that
Complainant encouraged her to do less work, did not act with any sense of urgency as numerous
customers sat in the queue, and took long lunches and breaks . She also reported that
Complainant lost a huge stack of papers on contractors containing their personally protected
information (PII) and fingerprints which delayed their start dates and took no action to fix th e
situation . Instead, the temporary assistant took care of this, including taking new fingerprints .
As a result of the above -described incidents , management witnesses explained Complainant was
rated minimally successful in accountability, communication, and collaboration. Among other things, Complainant’s appraisal specifically referred to her loss o f PII. Th e AJ noted
Complainant did not contest the loss , or show she was disparately treated.
On appeal, Complainant, via counsel, provides no argument supporting a reversal of the AJ’s conclusion that Agency witnesses provided legitimate, non- discrimin atory rea sons for the
disputed performance appraisal, and Complainant did not meet her evidentiary burden of proving pretext. We agree with the AJ that Complainant did not prove discrimination on any bas is.
Sanctions – Agency’s Appeal
It is undisputed that in the present case the Army delegated the EEO investigation to the
Department of Defense (DoD) , Investigations and Resolutions Directorate, which is a separate
Defense Department entity from the Army .
The Directorate opened the investigation with an Intake Services Assistant making a tailored and
comprehensive request to the Agency for relevant documents . Report of Investigation (ROI),
Sec. 7.6, at Bates No s 568 – 569. Following receipt of the documents, the assigned Directorate
investigator chose t o hold a transcribed Fact -Finding Conference (F FC). The investigator also
gave both parties an opportunity to submit additional documentation. Id. , at Bates No s. 581 –
582.
Complainant, her supervisor, and two human resources specialists (hereinafter all referred to as
witnesses) gave transcribed statements at the FFC. Complainant was represented by legal
counsel at the F FC, as was the Agency. The transcript reveals that the investigator elicited
statement s from each witness using a question and answer for mat. After eliciting a statement
from an individual witness, the investigator gave counsel for Complainant an opportunity to have
the witness add to their statement by asking follow -up questions , and then gave Agency counsel
the same opportunity. See DoD’ s A Participant Guide to Fact -Finding Conferences in
Complaint Investigations .
Shortly after receiving Complainant’s hearing request and with no prompting from the parties ,
the AJ issued an Order to Show Cause requiring the Age ncy to show that the FFC pro cess used
had not violate d EEO MD -110 and various cited EEOC cases which forbid the intrusion of the
Agency’s defensive function into the EEO investigative process. The AJ identified the
participation of Agency counsel in the F FC as potentially intrusive, a s well as the fact tha t the
same Agency attorney who represented the Age ncy at the FFC did so during the AJ hearing
process. He warned that failure to show cause could result in various sanctions.
In response to the Order to Show Cause, the Agency argue d that since the D oD Investigations
and Resolutions Directorate is fully in dependent and separate from the Army and decides which
investigator to assign and how to conduct the investigation without Agency supervision, this
separates the Agency’s represent ative from the EEO investigatory functions. It argued that while
the transcript showed the Agency counsel actively participated in the FFC, this did not constitute
an improper intrusion of the Agency’s defensive function into the EE O investigation because the
investigator was fully independent from the Agency and its counsel, and all parties were treated
equally. The Agency also argued that using the same person to represent the Agency at the FFC
and before the AJ did not constitute an intrusion because the investigator was fully independent.
The Agency conceded that it had exceeded the 180- day regulatory deadline for completing the
investigation by about a month and a week. It a rgued that this was due to staffing and resourcing
issues at the DoD’s Investi gations and Resolutions Directorate, and affirmative steps were being
taken to remedy the situation. It represented that that this was supported by a declaration, to
which the AJ later referred.
After receipt of the Agency’s arguments, the AJ issued a dec ision concluding that the
investi gative function is the responsibility of the Agency regardless of the entity that actually
perform ed the investigation and the Agency cannot use the DoD Investigations and Resolutions
Directorate as a shield to “launder ” improper intrusions/actions by Agency representatives. The
AJ identified Agency counsel ’s intrusions at the F FC as “ cross examining” Complainant (asking
her questions) , “speaking objections” ( asking if a comparator’s appraisal was relevant) ,
comment ing on testimony ( apparently by saying it was okay to allow leeway with hearsay) , and
“directing ” the method of providing documents to the investigator (asking the human resources
witness to coordinate gathering the documents requested by the investigator and Compl ainant’s
attorney so that multiple Agency staff were not fulfilling the same document request ), which the
AJ viewed as potentially limiting the gathering of relevant documents .
The AJ also identified as potential Agency intrusions actions by Complainant ’s attorney at the
FFC – her questioning witnesses and making “objection[s] ” based on hearsay and relevance. The
AJ found that the actions of Complainant’s attorney were a foreseeable result of convening the
FFC without appropriate safeguards and that the investigator – and therefore the Agency – failed
to regain control of the FFC and return it to its investigative function, but rather allowed to
devolve to a “quasi -mini-hearing ” by permitting the representatives of Comp lainant and the
Agency to question w itnesses as if at a trial.
In sum, the AJ concluded that Agency counsel ’s participation in the FFC and before the AJ
violated the requirement that the Agency keep its investigatory and defensive functions separate.
Likewise, the AJ found that DoD’s A Par ticipant’s Guide to Fact -Finding Conferences in
Complaint Investigations needed to be updated to ban such intrusions . In support of the above
findings, the AJ cited to language in Annalee D. v. General Services Administration (GSA) ,
EEOC Appeal No. 0120170991 (Oct. 10, 2018) that the “agency representative should not have a
role in shaping the testimony of witnesses or the evidence gathered by t he EEO investigator ,”
whic h occurred in that case when agency counsel accompan ied a supervisor accused of
discrimi nation to an EEO investigative interview.
The AJ also found that the Agency’s missing the 180- day deadline to complete the EEO
investigation had a negative effect on the integrity of the EEO process, albeit this was partially
mitigated by the representat ion by DoD Investigations and Resolutions Directorate regarding the
efforts it wa s taking to avoi d similar delays in other cases.
As already noted, the AJ sanctioned the Agency by ordering it to do the following: (1) provide
two hours of training to Agency counsel in this case on the responsibilities of representing the
Agency during the EEO investigative process , inclu ding the requirements of EEO MD -110, at 1
– 9, Chap. 1, § IV.D; (2) ensure that two hours of training is provided to the DoD Investigatio ns
and Resolutions Directorate EEO investigator in this case on her responsibilities concerning
FFCs and guarding against Agency intrusions during the investigative process , including the
requirements of EEO MD -110 above ; (3) ensure that the DoD’s A Partic ipant Guide to Fact -
Finding Conferences in Complaint Investigations is updated to comply with the part of EEO
MD-110 cited above ; (4) replace the Agency counsel in this case with one who did not
participate in the investigative process in this and a specif ied companion case ; and (5) email
language specified by the AJ to t he Agency’s Director of EEO that reiterat es the 180 day
deadline above and admonishing the Agency for failure to meet the deadline in this case.
On appeal, the Agency reiterates arguments it made below. It also argues that shortly after the AJ
issued his decision, the Commission granted GSA’s request to reconsider the decision in Annalee
D., upon which the AJ relied, vacating the s anctions and modifying the decision. See Annalee D.
v. GSA, EEOC Request No. 2019000778 (Nov. 27, 2019). Applying the modified language in
Request No. 2019000778, the Agency argues that its defensive function did not intrude on the EEO investigati on in this case. It also argues that a sanction is not warranted in t his case for
missing the 180- day regulatory deadline by a little over a month.
In opposition to the appeal, Complainant argues that that the AJ’s sanctions should be upheld.
Essentially, the AJ found that the DoD’s Investigations and Resolutions Direc torate investigator
holding a “quasi -mini- hearing” (the FFC) with the participation of both Agency and
Complainant’s legal counsel was an intrusion of the Agency’s defensive function into the EEO
investigation violating EEO MD -110, at 1 – 9, Chap. 1, § IV. D. We disagree.
The Commission’s Equal Employment Opportunity Management Directive for 29 C.F.R. Part
1614 (EEO MD -110), at 1 – 9, Chap. 1, § IV.D ( REV. Aug. 5, 2015) requires that :
Heads of agencies must manage the dual obligations of carrying out fai r and
impartial investigations of complaints … [of] discrimination … and defending the
agency against claims of employment discrimination…. … [A] clear separation between the agency’s EEO complaint program and the
agency’s defensive function is thus the ess ential underpinning of a fair and
impartial investigation, enhancing the … integrity of the EEO complaints
process….
EEO MD -110 goes on to explicitly permit an EEO investigator to collect and discover factual
information by being “a presiding official at a fact-finding conference”. Id., at 6- 6, Chap. 6, §
V.B. See also , 29 C.F.R. § 1614.108(b). The “presiding” of an investigator at an FFC anticipates
that someone other than the investigator is asking questions . The most obvious “ someone ” is the
parties. Thus, the question to be determined is whether or not the participation of legal counsel
from eith er party should be allowed at a fact -finding conference.
As an initial matter, w e find that permitting Complainant’s counsel at the F FC to ask witnesses
follow -up questions after the EEO investigator elicited a statement from each witness , as well as
questioning the admissibility of testimony, did not constitute an improper intrusion o f the
Agency’s defensive function into the EEO investigation. In sum , we fail to see how
Complainant’s attorney has anything to do with the Agency’s defensive function. Moreover, our
regulations explicitly provide that at “any stage in the processing of a complaint . . . the complainant shall have the right to be accompanied, repres ented, and advised by a representative
of complainant’s choice.”
With regard to the participation of Agency counsel in a fact -finding conference, we look to
Annalee D. v. GSA , EEOC Request No. 2019000778 (Nov. 27, 2019) , issued after the AJ’s
decision, which contains an extensive discussion of the Agency attorney intrusion issues. In
recognizing the disparate yet vital responsibilities of the agency’s EEO office and agency defense counsel, EEO MD -110, at 1 – 9, Chap. 1, § IV.D recognize d these entities wi ll inev itably
interact with each other. EEO MD-110 sets out the parameters for these interactions and seeks to
ensure that neither entity inappropriately interferes with the functions of the other. The
Commission found that its prior Annalee D. decision set forth an absolute rule prohibiting
agency defense counsel from participating in the pre -hearing stages of EEO matters, including
the investi gation . In reconsidering this decision, the Commission found nothing in MD -110
explicitly bans agency defense coun sel from assisting an agency manager in the preparation of
their affidavit during an investigation or act ing as a legal representative for the Agency under the
appropriate circumstances. Rather, the issu e of utmost concern to the Commission is whether the
actions of agency defense counsel improperly interfered with or negatively influenced the EEO
process, such as formulating the questions asked by the investigator, altering or withholding
statements/reco rds from management officials/witnesses, instructing officials to make untrue
statements, or changing any affidavit without the affiant’s approval of such changes, and limiting
the individuals whom the investigator can interview . Id.
Applying these stand ards to the instant case, we find that the structure of the DoD Directorate’s
FFC, as set forth in its participant’ s guide and implemented here, does not breach the
requirement that the Agency maintain a proper separation between the Agency’s defensive and
EEO investigatory functions. As ruled in EEOC Reque st No. 2019000778, there is no absolute
rule that prohibits agency defense counsel from participating in the pre -hearing stages of EEO
matters , including the investigation . Agency counsel and investigators are cautioned however
that the decision in Annalee D., Request 2019000778, limited that participation. The agency’s
own guida nce on FFCs explicitly states that the investigator “conducts and controls ” the F FC and
Agency counsel ’s role is limited to soliciting clarifying information from witnesses called a nd
questioned by the investigator as deemed appropriate by the investigator . The investigator and
EEO officials maintain primary responsibility for developing the impartial record necessary for a
final agency decision. If such a record is not developed an d a hearing before a n EEOC AJ is
requested, the Commission’s regulations provide that the AJ will supplement the record. In this
appeal, however, the AJ and the Commission determined that the record , as developed during the
investigation, was sufficiently developed for summary judgment.
The Commission ’s determination concerning possible intrusion by Agency counsel must be
made on a case- by-case basis. We find no evidence of improper intrusion by the Agency’s legal
counsel at th is FFC . The record, which i ncludes the transcript of the F FC, shows that none of the
actions by Agency counsel direct ed, control led, interfered with, or overrule d the investigator.
The AJ’s finding to the contrary does not a ccount for all the work done by DoD’s Directorate
prior to the FFC to secure the relevant comprehensive docu ment s, soliciting both parti es to name
relevant witnesses with a brief explanation of their expected testimony, and giving both parties
the opportunity to submit additional documentation. It also does not ac count for the investigator
at the FFC first eliciting a statement from each witness using a question and answer format,
thereby creating a record regarding that witness ’ testimony before giving legal counsels for
Complainant and the Agency the opportunity to ask follow -up questions. Likewise, we disagree
with the AJ that Agency counsel’s “speaking objections” (rhetorically asking if the comparator’s appraisal was relevant), commenting on testimony (apparently suggesting that it was okay to
allow lee way wit h hearsay), or attempting to facilitate the provision of documents to the
investigator (asking the human resources witness to coordinate gathering the documents requested by the investigator and Complainant’s attorney) were intrusion s of the Agency’s
defen sive fun ction into its EEO program . At any point during the F FC, the investigator could
have shut either counsel down if their conduct interfered with the development of an impartial
record.
The Agency concedes that it exceeded th e 180- day regulatory dea dline to complete the EEO
investigation by about a month and a week. Given the length of this delay together with the mitigating circumstance s cited by the AJ, we find that this alone, without other sanctionable
conduct, does not warrant a sanction in this case.
CONCLUSION
The Agency’s final action fully implementing the AJ’s finding of no discrimination is
AFFIRMED. The Agency’s final action rejecting all of the AJ’s sanctions is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0620)
The Co mmission 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 interpr etation 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 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, 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 opposi tion 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 th e
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 req uests 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 he r full na me 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 rec onsider a nd 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 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 reque sts 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 (ple ase 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, 2021
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142 | https://www.eeoc.gov/sites/default/files/decisions/2021_08_31/2020001154.pdf | 2020001154.pdf | PDF | application/pdf | 30,372 | Kylee C.,1 Complainant, v. John E. Whitley, Acting Secretary, Department of the Army, Agency. | December 3, 2019 | Appeal Number: 2020001154
Background:
At the time of events at issue, Complainant was employed by the Agency as a Security Assistant,
GG-0086-05, at the Tripler Army Medical Center in Honolulu, Hawaii. On February 20, 2018, Complainant filed an equal employment opportunity (EEO) complaint
alleging violations of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. § 2000e et seq., and the Age Discrimination in Employment Act of 1967 (ADEA), as
amended, 29 U.S.C. § 621 et seq.
Specifically, she alleged that the Agency discriminated against her based on her race (Asian), sex
(female), age (5 4), and reprisal for prior protected EEO ac tivity when she got a performance
appraisal for the period of October 1, 2016 to September 30, 2017, with a rating of 2 – minimally
successful.
Following an investigation, Complainant requested a hearing before an EEOC AJ. The Agency
filed a motion for summary judgment , which Complainant opposed. The AJ issued a decision by
summary judgment finding no discriminat ion was established . However, the AJ also sanctioned
the Agency for its legal counsel’s actions during the investigation’s fact- finding conf erence, and
for exceeding by about a month and a week the 180-day regulatory deadline to complete the
EEO investigat ion.
As sanction s, the AJ ordered the Agency to do the following: (1) provide two hours of training to
Agency counsel in this case on the r esponsibilities of representing the Agency during the EEO
investigative process, including the requirements of EEOC’ s Equal Employment Opportunity
Management Directive for 29 C.F.R. Part 1614 (EEO MD -110), at 1 – 9, Chap. 1, § IV.D (REV.
Aug. 5, 2015) ; (2) ensure that two hours of training is provided to the DoD Investigations and
Resolutions Directorate EEO investigato r in this case on her responsibilities concerning fact -
finding conferences and guarding against Agency intrusions during the investigative process, including the requirements of EEO MD -110 above ; (3) ensure that the DoD’s A Participant
Guide to Fact -Findin g Conferences in Complaint Investigations is updated to comply with the
part of EEO MD -110 cited above ; (4) replace the Agency counsel in this case with one who did
not participate in the investigative process in this and a specified companion case; and (5 ) email
language specified by the AJ to t he Agency’s Director of EEO that reiterates the 180 -day
deadline for completing investigations and admonishes the Agency for failure to meet the
deadline in this case.
The Agency’s final action accepted the findi ng of no discrimination but rejected the finding that
there was a conflict of interest and rejected all sanctions.
Legal Analysis:
the Commission affirm its rejection of part of a n EEOC
Administrative Judge's (AJ) decision that sanctioned the Agency. On January 10, 2020,
Complainant filed a timely cross appeal requesting that the Commission reverse the remain der of
the AJ’s decision finding of no discrimination.
BACKGROUND
At the time of events at issue, Complainant was employed by the Agency as a Security Assistant,
GG-0086-05, at the Tripler Army Medical Center in Honolulu, Hawaii. On February 20, 2018, Complainant filed an equal employment opportunity (EEO) complaint
alleging violations of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. § 2000e et seq., and the Age Discrimination in Employment Act of 1967 (ADEA), as
amended, 29 U.S.C. § 621 et seq.
Specifically, she alleged that the Agency discriminated against her based on her race (Asian), sex
(female), age (5 4), and reprisal for prior protected EEO ac tivity when she got a performance
appraisal for the period of October 1, 2016 to September 30, 2017, with a rating of 2 – minimally
successful.
Following an investigation, Complainant requested a hearing before an EEOC AJ. The Agency
filed a motion for summary judgment , which Complainant opposed. The AJ issued a decision by
summary judgment finding no discriminat ion was established . However, the AJ also sanctioned
the Agency for its legal counsel’s actions during the investigation’s fact- finding conf erence, and
for exceeding by about a month and a week the 180-day regulatory deadline to complete the
EEO investigat ion.
As sanction s, the AJ ordered the Agency to do the following: (1) provide two hours of training to
Agency counsel in this case on the r esponsibilities of representing the Agency during the EEO
investigative process, including the requirements of EEOC’ s Equal Employment Opportunity
Management Directive for 29 C.F.R. Part 1614 (EEO MD -110), at 1 – 9, Chap. 1, § IV.D (REV.
Aug. 5, 2015) ; (2) ensure that two hours of training is provided to the DoD Investigations and
Resolutions Directorate EEO investigato r in this case on her responsibilities concerning fact -
finding conferences and guarding against Agency intrusions during the investigative process, including the requirements of EEO MD -110 above ; (3) ensure that the DoD’s A Participant
Guide to Fact -Findin g Conferences in Complaint Investigations is updated to comply with the
part of EEO MD -110 cited above ; (4) replace the Agency counsel in this case with one who did
not participate in the investigative process in this and a specified companion case; and (5 ) email
language specified by the AJ to t he Agency’s Director of EEO that reiterates the 180 -day
deadline for completing investigations and admonishes the Agency for failure to meet the
deadline in this case.
The Agency’s final action accepted the findi ng of no discrimination but rejected the finding that
there was a conflict of interest and rejected all sanctions.
ANALYSIS AND FINDINGS
Performance Appraisal – Complainant’s Cross Appeal
The Commission's regulations allow an AJ to issue a decision wi thout a hearing when he or she
finds that there is no genuine issue of material fact. 29 C.F.R. § 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 a ppropriate 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 court’s 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 summa ry jud gment stage and all
justifiable inferences must be drawn in the non -moving party’s favor. Id. at 255.
An issue of fact is "genuine" if the evidence is such that a reasonable fact finder could find in
favor of the non- moving party. Celotex v. Catret t, 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. If a case can only be resolved by weighing conflicting
evidence, issuing a de cision without holding a hearing is not appropriate.
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 e stablish that such facts are material under appli cable law. While C omplainant
has, in a very general sense, asserted that facts are in dispute, s he has failed to point with any
specificity to particular evidence in the investigative file or other evidence of record that
indicates such a dispute. For th e reasons discussed below, we find that, even construing any
inferences raised by the undisputed facts in favor of Com plainant, a reasonable fact -finder could
not find in her favor.
To prevail in a disparat e treatment claim such as this, Complainant must satisfy the three -part
evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411
U.S. 792 (1973). She m ust generally establish a prima facie case by d emonstrating that s he wa s
subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Constr. Co. v. Waters , 438 U.S. 567, 576 (1978). The prima facie
inquiry may be dispensed with in this case, h owever, since the Agency has articulated legitimate
and nondiscriminatory reasons for its conduct. U.S. Postal Serv. Bd. of Governors v. Aikens ,
460 U.S. 711, 713- 17 (1983) . To ultimately prevail, Complainant must prove, by a
preponderance of the evidence , that the Agency’s expl anation is a pretext for discrimination. St.
Mary's Honor Ctr. v. Hicks , 509 U.S. 502, 519 (1993).
Here, the evidence of record fully supports the AJ’s | Kylee C.,1
Complainant,
v.
John E. Whitley,
Acting Secretary,
Department of the Army,
Agency.
Appeal No. 2020001154
Hearing No. 480-2020-00029X
Agency No. ARSHAFT ER18JAN00087
DECISION
Simultaneously with its December 3, 2019 final order, the Agency filed a timely appeal with the
Equal Employment Opportunity Commission (EEOC or Commission) pursuant to 29 C.F.R. §
1614.403(a). T he Agency requests that the Commission affirm its rejection of part of a n EEOC
Administrative Judge's (AJ) decision that sanctioned the Agency. On January 10, 2020,
Complainant filed a timely cross appeal requesting that the Commission reverse the remain der of
the AJ’s decision finding of no discrimination.
BACKGROUND
At the time of events at issue, Complainant was employed by the Agency as a Security Assistant,
GG-0086-05, at the Tripler Army Medical Center in Honolulu, Hawaii. On February 20, 2018, Complainant filed an equal employment opportunity (EEO) complaint
alleging violations of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. § 2000e et seq., and the Age Discrimination in Employment Act of 1967 (ADEA), as
amended, 29 U.S.C. § 621 et seq.
Specifically, she alleged that the Agency discriminated against her based on her race (Asian), sex
(female), age (5 4), and reprisal for prior protected EEO ac tivity when she got a performance
appraisal for the period of October 1, 2016 to September 30, 2017, with a rating of 2 – minimally
successful.
Following an investigation, Complainant requested a hearing before an EEOC AJ. The Agency
filed a motion for summary judgment , which Complainant opposed. The AJ issued a decision by
summary judgment finding no discriminat ion was established . However, the AJ also sanctioned
the Agency for its legal counsel’s actions during the investigation’s fact- finding conf erence, and
for exceeding by about a month and a week the 180-day regulatory deadline to complete the
EEO investigat ion.
As sanction s, the AJ ordered the Agency to do the following: (1) provide two hours of training to
Agency counsel in this case on the r esponsibilities of representing the Agency during the EEO
investigative process, including the requirements of EEOC’ s Equal Employment Opportunity
Management Directive for 29 C.F.R. Part 1614 (EEO MD -110), at 1 – 9, Chap. 1, § IV.D (REV.
Aug. 5, 2015) ; (2) ensure that two hours of training is provided to the DoD Investigations and
Resolutions Directorate EEO investigato r in this case on her responsibilities concerning fact -
finding conferences and guarding against Agency intrusions during the investigative process, including the requirements of EEO MD -110 above ; (3) ensure that the DoD’s A Participant
Guide to Fact -Findin g Conferences in Complaint Investigations is updated to comply with the
part of EEO MD -110 cited above ; (4) replace the Agency counsel in this case with one who did
not participate in the investigative process in this and a specified companion case; and (5 ) email
language specified by the AJ to t he Agency’s Director of EEO that reiterates the 180 -day
deadline for completing investigations and admonishes the Agency for failure to meet the
deadline in this case.
The Agency’s final action accepted the findi ng of no discrimination but rejected the finding that
there was a conflict of interest and rejected all sanctions.
ANALYSIS AND FINDINGS
Performance Appraisal – Complainant’s Cross Appeal
The Commission's regulations allow an AJ to issue a decision wi thout a hearing when he or she
finds that there is no genuine issue of material fact. 29 C.F.R. § 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 a ppropriate 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 court’s 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 summa ry jud gment stage and all
justifiable inferences must be drawn in the non -moving party’s favor. Id. at 255.
An issue of fact is "genuine" if the evidence is such that a reasonable fact finder could find in
favor of the non- moving party. Celotex v. Catret t, 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. If a case can only be resolved by weighing conflicting
evidence, issuing a de cision without holding a hearing is not appropriate.
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 e stablish that such facts are material under appli cable law. While C omplainant
has, in a very general sense, asserted that facts are in dispute, s he has failed to point with any
specificity to particular evidence in the investigative file or other evidence of record that
indicates such a dispute. For th e reasons discussed below, we find that, even construing any
inferences raised by the undisputed facts in favor of Com plainant, a reasonable fact -finder could
not find in her favor.
To prevail in a disparat e treatment claim such as this, Complainant must satisfy the three -part
evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411
U.S. 792 (1973). She m ust generally establish a prima facie case by d emonstrating that s he wa s
subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Constr. Co. v. Waters , 438 U.S. 567, 576 (1978). The prima facie
inquiry may be dispensed with in this case, h owever, since the Agency has articulated legitimate
and nondiscriminatory reasons for its conduct. U.S. Postal Serv. Bd. of Governors v. Aikens ,
460 U.S. 711, 713- 17 (1983) . To ultimately prevail, Complainant must prove, by a
preponderance of the evidence , that the Agency’s expl anation is a pretext for discrimination. St.
Mary's Honor Ctr. v. Hicks , 509 U.S. 502, 519 (1993).
Here, the evidence of record fully supports the AJ’s conclusion that the responsible management officials articulated legitimate , non-discriminatory reaso ns for the performance rating issued,
which Complainant failed to prove, by a preponderance of the evidence, was a pretext masking discrimination or retaliatory animus.
For new hires, Complainant conducted in- processing, which included initiating backgro und
investigations, updating personnel records, and fingerprinting . Citing to the record, the AJ found
that during the appraisal period, Complainant’s performance of her s ecurity functions generated
multiple complaints by customers and coworkers. Specifical ly, customers variously complained
of major delays caused by Complainant being disorganized, distracted , going off -topic and
having a bad attitude to the point of dysfunction, being told to go away and threaten ing to revoke
the customer’s clearance, and being so rude that a customer complained of feeling attacked and
appalled . Two coworkers , who were temporarily assigned to assist Compla inant , variously
reported that she was disorganized , her files were in dis array, and she only did a small fraction of
her work due to prolonged discussion about her personal life with numerous others who stopped
by.
One of the temporary assistants r eported that Complainant treated her customers with disrespect .
Some examples were saying within hearing distance of a customer who interrupted her with a
question, “who does she think she is… am I supposed to drop what I am doing to wait on he r
when I have a customer ”, and another time when a sked if she was ready to see a customer barked
“I guess so” - indicating she did not want to be bothered. This assistant reported that
Complainant encouraged her to do less work, did not act with any sense of urgency as numerous
customers sat in the queue, and took long lunches and breaks . She also reported that
Complainant lost a huge stack of papers on contractors containing their personally protected
information (PII) and fingerprints which delayed their start dates and took no action to fix th e
situation . Instead, the temporary assistant took care of this, including taking new fingerprints .
As a result of the above -described incidents , management witnesses explained Complainant was
rated minimally successful in accountability, communication, and collaboration. Among other things, Complainant’s appraisal specifically referred to her loss o f PII. Th e AJ noted
Complainant did not contest the loss , or show she was disparately treated.
On appeal, Complainant, via counsel, provides no argument supporting a reversal of the AJ’s conclusion that Agency witnesses provided legitimate, non- discrimin atory rea sons for the
disputed performance appraisal, and Complainant did not meet her evidentiary burden of proving pretext. We agree with the AJ that Complainant did not prove discrimination on any bas is.
Sanctions – Agency’s Appeal
It is undisputed that in the present case the Army delegated the EEO investigation to the
Department of Defense (DoD) , Investigations and Resolutions Directorate, which is a separate
Defense Department entity from the Army .
The Directorate opened the investigation with an Intake Services Assistant making a tailored and
comprehensive request to the Agency for relevant documents . Report of Investigation (ROI),
Sec. 7.6, at Bates No s 568 – 569. Following receipt of the documents, the assigned Directorate
investigator chose t o hold a transcribed Fact -Finding Conference (F FC). The investigator also
gave both parties an opportunity to submit additional documentation. Id. , at Bates No s. 581 –
582.
Complainant, her supervisor, and two human resources specialists (hereinafter all referred to as
witnesses) gave transcribed statements at the FFC. Complainant was represented by legal
counsel at the F FC, as was the Agency. The transcript reveals that the investigator elicited
statement s from each witness using a question and answer for mat. After eliciting a statement
from an individual witness, the investigator gave counsel for Complainant an opportunity to have
the witness add to their statement by asking follow -up questions , and then gave Agency counsel
the same opportunity. See DoD’ s A Participant Guide to Fact -Finding Conferences in
Complaint Investigations .
Shortly after receiving Complainant’s hearing request and with no prompting from the parties ,
the AJ issued an Order to Show Cause requiring the Age ncy to show that the FFC pro cess used
had not violate d EEO MD -110 and various cited EEOC cases which forbid the intrusion of the
Agency’s defensive function into the EEO investigative process. The AJ identified the
participation of Agency counsel in the F FC as potentially intrusive, a s well as the fact tha t the
same Agency attorney who represented the Age ncy at the FFC did so during the AJ hearing
process. He warned that failure to show cause could result in various sanctions.
In response to the Order to Show Cause, the Agency argue d that since the D oD Investigations
and Resolutions Directorate is fully in dependent and separate from the Army and decides which
investigator to assign and how to conduct the investigation without Agency supervision, this
separates the Agency’s represent ative from the EEO investigatory functions. It argued that while
the transcript showed the Agency counsel actively participated in the FFC, this did not constitute
an improper intrusion of the Agency’s defensive function into the EE O investigation because the
investigator was fully independent from the Agency and its counsel, and all parties were treated
equally. The Agency also argued that using the same person to represent the Agency at the FFC
and before the AJ did not constitute an intrusion because the investigator was fully independent.
The Agency conceded that it had exceeded the 180- day regulatory deadline for completing the
investigation by about a month and a week. It a rgued that this was due to staffing and resourcing
issues at the DoD’s Investi gations and Resolutions Directorate, and affirmative steps were being
taken to remedy the situation. It represented that that this was supported by a declaration, to
which the AJ later referred.
After receipt of the Agency’s arguments, the AJ issued a dec ision concluding that the
investi gative function is the responsibility of the Agency regardless of the entity that actually
perform ed the investigation and the Agency cannot use the DoD Investigations and Resolutions
Directorate as a shield to “launder ” improper intrusions/actions by Agency representatives. The
AJ identified Agency counsel ’s intrusions at the F FC as “ cross examining” Complainant (asking
her questions) , “speaking objections” ( asking if a comparator’s appraisal was relevant) ,
comment ing on testimony ( apparently by saying it was okay to allow leeway with hearsay) , and
“directing ” the method of providing documents to the investigator (asking the human resources
witness to coordinate gathering the documents requested by the investigator and Compl ainant’s
attorney so that multiple Agency staff were not fulfilling the same document request ), which the
AJ viewed as potentially limiting the gathering of relevant documents .
The AJ also identified as potential Agency intrusions actions by Complainant ’s attorney at the
FFC – her questioning witnesses and making “objection[s] ” based on hearsay and relevance. The
AJ found that the actions of Complainant’s attorney were a foreseeable result of convening the
FFC without appropriate safeguards and that the investigator – and therefore the Agency – failed
to regain control of the FFC and return it to its investigative function, but rather allowed to
devolve to a “quasi -mini-hearing ” by permitting the representatives of Comp lainant and the
Agency to question w itnesses as if at a trial.
In sum, the AJ concluded that Agency counsel ’s participation in the FFC and before the AJ
violated the requirement that the Agency keep its investigatory and defensive functions separate.
Likewise, the AJ found that DoD’s A Par ticipant’s Guide to Fact -Finding Conferences in
Complaint Investigations needed to be updated to ban such intrusions . In support of the above
findings, the AJ cited to language in Annalee D. v. General Services Administration (GSA) ,
EEOC Appeal No. 0120170991 (Oct. 10, 2018) that the “agency representative should not have a
role in shaping the testimony of witnesses or the evidence gathered by t he EEO investigator ,”
whic h occurred in that case when agency counsel accompan ied a supervisor accused of
discrimi nation to an EEO investigative interview.
The AJ also found that the Agency’s missing the 180- day deadline to complete the EEO
investigation had a negative effect on the integrity of the EEO process, albeit this was partially
mitigated by the representat ion by DoD Investigations and Resolutions Directorate regarding the
efforts it wa s taking to avoi d similar delays in other cases.
As already noted, the AJ sanctioned the Agency by ordering it to do the following: (1) provide
two hours of training to Agency counsel in this case on the responsibilities of representing the
Agency during the EEO investigative process , inclu ding the requirements of EEO MD -110, at 1
– 9, Chap. 1, § IV.D; (2) ensure that two hours of training is provided to the DoD Investigatio ns
and Resolutions Directorate EEO investigator in this case on her responsibilities concerning
FFCs and guarding against Agency intrusions during the investigative process , including the
requirements of EEO MD -110 above ; (3) ensure that the DoD’s A Partic ipant Guide to Fact -
Finding Conferences in Complaint Investigations is updated to comply with the part of EEO
MD-110 cited above ; (4) replace the Agency counsel in this case with one who did not
participate in the investigative process in this and a specif ied companion case ; and (5) email
language specified by the AJ to t he Agency’s Director of EEO that reiterat es the 180 day
deadline above and admonishing the Agency for failure to meet the deadline in this case.
On appeal, the Agency reiterates arguments it made below. It also argues that shortly after the AJ
issued his decision, the Commission granted GSA’s request to reconsider the decision in Annalee
D., upon which the AJ relied, vacating the s anctions and modifying the decision. See Annalee D.
v. GSA, EEOC Request No. 2019000778 (Nov. 27, 2019). Applying the modified language in
Request No. 2019000778, the Agency argues that its defensive function did not intrude on the EEO investigati on in this case. It also argues that a sanction is not warranted in t his case for
missing the 180- day regulatory deadline by a little over a month.
In opposition to the appeal, Complainant argues that that the AJ’s sanctions should be upheld.
Essentially, the AJ found that the DoD’s Investigations and Resolutions Direc torate investigator
holding a “quasi -mini- hearing” (the FFC) with the participation of both Agency and
Complainant’s legal counsel was an intrusion of the Agency’s defensive function into the EEO
investigation violating EEO MD -110, at 1 – 9, Chap. 1, § IV. D. We disagree.
The Commission’s Equal Employment Opportunity Management Directive for 29 C.F.R. Part
1614 (EEO MD -110), at 1 – 9, Chap. 1, § IV.D ( REV. Aug. 5, 2015) requires that :
Heads of agencies must manage the dual obligations of carrying out fai r and
impartial investigations of complaints … [of] discrimination … and defending the
agency against claims of employment discrimination…. … [A] clear separation between the agency’s EEO complaint program and the
agency’s defensive function is thus the ess ential underpinning of a fair and
impartial investigation, enhancing the … integrity of the EEO complaints
process….
EEO MD -110 goes on to explicitly permit an EEO investigator to collect and discover factual
information by being “a presiding official at a fact-finding conference”. Id., at 6- 6, Chap. 6, §
V.B. See also , 29 C.F.R. § 1614.108(b). The “presiding” of an investigator at an FFC anticipates
that someone other than the investigator is asking questions . The most obvious “ someone ” is the
parties. Thus, the question to be determined is whether or not the participation of legal counsel
from eith er party should be allowed at a fact -finding conference.
As an initial matter, w e find that permitting Complainant’s counsel at the F FC to ask witnesses
follow -up questions after the EEO investigator elicited a statement from each witness , as well as
questioning the admissibility of testimony, did not constitute an improper intrusion o f the
Agency’s defensive function into the EEO investigation. In sum , we fail to see how
Complainant’s attorney has anything to do with the Agency’s defensive function. Moreover, our
regulations explicitly provide that at “any stage in the processing of a complaint . . . the complainant shall have the right to be accompanied, repres ented, and advised by a representative
of complainant’s choice.”
With regard to the participation of Agency counsel in a fact -finding conference, we look to
Annalee D. v. GSA , EEOC Request No. 2019000778 (Nov. 27, 2019) , issued after the AJ’s
decision, which contains an extensive discussion of the Agency attorney intrusion issues. In
recognizing the disparate yet vital responsibilities of the agency’s EEO office and agency defense counsel, EEO MD -110, at 1 – 9, Chap. 1, § IV.D recognize d these entities wi ll inev itably
interact with each other. EEO MD-110 sets out the parameters for these interactions and seeks to
ensure that neither entity inappropriately interferes with the functions of the other. The
Commission found that its prior Annalee D. decision set forth an absolute rule prohibiting
agency defense counsel from participating in the pre -hearing stages of EEO matters, including
the investi gation . In reconsidering this decision, the Commission found nothing in MD -110
explicitly bans agency defense coun sel from assisting an agency manager in the preparation of
their affidavit during an investigation or act ing as a legal representative for the Agency under the
appropriate circumstances. Rather, the issu e of utmost concern to the Commission is whether the
actions of agency defense counsel improperly interfered with or negatively influenced the EEO
process, such as formulating the questions asked by the investigator, altering or withholding
statements/reco rds from management officials/witnesses, instructing officials to make untrue
statements, or changing any affidavit without the affiant’s approval of such changes, and limiting
the individuals whom the investigator can interview . Id.
Applying these stand ards to the instant case, we find that the structure of the DoD Directorate’s
FFC, as set forth in its participant’ s guide and implemented here, does not breach the
requirement that the Agency maintain a proper separation between the Agency’s defensive and
EEO investigatory functions. As ruled in EEOC Reque st No. 2019000778, there is no absolute
rule that prohibits agency defense counsel from participating in the pre -hearing stages of EEO
matters , including the investigation . Agency counsel and investigators are cautioned however
that the decision in Annalee D., Request 2019000778, limited that participation. The agency’s
own guida nce on FFCs explicitly states that the investigator “conducts and controls ” the F FC and
Agency counsel ’s role is limited to soliciting clarifying information from witnesses called a nd
questioned by the investigator as deemed appropriate by the investigator . The investigator and
EEO officials maintain primary responsibility for developing the impartial record necessary for a
final agency decision. If such a record is not developed an d a hearing before a n EEOC AJ is
requested, the Commission’s regulations provide that the AJ will supplement the record. In this
appeal, however, the AJ and the Commission determined that the record , as developed during the
investigation, was sufficiently developed for summary judgment.
The Commission ’s determination concerning possible intrusion by Agency counsel must be
made on a case- by-case basis. We find no evidence of improper intrusion by the Agency’s legal
counsel at th is FFC . The record, which i ncludes the transcript of the F FC, shows that none of the
actions by Agency counsel direct ed, control led, interfered with, or overrule d the investigator.
The AJ’s finding to the contrary does not a ccount for all the work done by DoD’s Directorate
prior to the FFC to secure the relevant comprehensive docu ment s, soliciting both parti es to name
relevant witnesses with a brief explanation of their expected testimony, and giving both parties
the opportunity to submit additional documentation. It also does not ac count for the investigator
at the FFC first eliciting a statement from each witness using a question and answer format,
thereby creating a record regarding that witness ’ testimony before giving legal counsels for
Complainant and the Agency the opportunity to ask follow -up questions. Likewise, we disagree
with the AJ that Agency counsel’s “speaking objections” (rhetorically asking if the comparator’s appraisal was relevant), commenting on testimony (apparently suggesting that it was okay to
allow lee way wit h hearsay), or attempting to facilitate the provision of documents to the
investigator (asking the human resources witness to coordinate gathering the documents requested by the investigator and Complainant’s attorney) were intrusion s of the Agency’s
defen sive fun ction into its EEO program . At any point during the F FC, the investigator could
have shut either counsel down if their conduct interfered with the development of an impartial
record.
The Agency concedes that it exceeded th e 180- day regulatory dea dline to complete the EEO
investigation by about a month and a week. Given the length of this delay together with the mitigating circumstance s cited by the AJ, we find that this alone, without other sanctionable
conduct, does not warrant a sanction in this case.
CONCLUSION
The Agency’s final action fully implementing the AJ’s finding of no discrimination is
AFFIRMED. The Agency’s final action rejecting all of the AJ’s sanctions is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0620)
The Co mmission 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 interpr etation 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 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, 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 opposi tion 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 th e
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 req uests 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 he r full na me 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 rec onsider a nd 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 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 reque sts 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 (ple ase 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, 2021
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143 | https://www.eeoc.gov/sites/default/files/migrated_files/decisions/2019003623.pdf | 2019003623.pdf | PDF | application/pdf | 19,780 | Elly C. ,1 Complainant, v. Barbara Stewart , Chief Executive Officer, Corporation for National and Community Service, Agency. | March 2, 2019 | Appeal Number: 2019003623
Background:
During the period at issue, Complainant worked for the Agency as a Senior Human Capital
Consultant in Washington, D.C. In January 2019, Complainant initiated the EEO process by contacting an Agency EEO counselor .
On March 2, 2019, t he EEO counselor sent Complainant a Notice of Right to File a Formal
Complaint (Notice) via email. The Notice provided, in pertinent part, “[y]ou are now entitled to
file a formal complaint of discrimination on the allegations raised during the pre -complaint
process. Specifically, whether you were subjected to discrimination and harassment b ased on
disability (physical and mental) concerning the following matters: denial of disability
accommodation and denial of telework schedule.” The Notice informed Complaint that she must submit a formal complaint within 15 days of receipt of the Notice.
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 2019003623
On March 4, 2019, Complainant responded via email that she received the Notice. On March 19,
2019, Complainant s ent an email to the address for filing formal complaints which was provided
in the Notice. In the March 19, 2019 email, Complainant stated “t his email serves as my formal
EEO complaint…I have attached my EEO Counseling Report. ”
By email dated March 26, 2019, the Agency’s Coordinator for f ormal EEO complaints (EEO
Official) contacted Complainant . The EEO Official stated that Complainant’s Marc h 19, 2019
email did not contain a formal complaint form. The EEO O fficial acknowledged that Complainant
had not previously been provided a formal complaint form and that the Agency was now sending one “to rectify this matter.” The EEO Official asked Com plainant to complete, sign, and date the
formal complaint form and return it to the EEO official by March 29, 2019.
By email dated March 29, 2019, Complainant responded to the EEO official providing the formal complaint form. Complainant had signed and d ated the formal complaint form . In section 13 of
the formal complaint form, which asked how a complainant believed they were discriminated against, Complainant wrote , “[p]lease see EEO Counselor’s Report dated March 4, 2019.”
In its final decision date d May 1 , 2019, the Agency dismissed Complainant’s formal complaint.
The Agency found that Complainant’s March 19, 2019 email submission did not meet the standard for filing a formal complaint. Specifically, t he Agency stated that the submission “was not signed
and it was not specific. Simply, attaching your EEO Counselor’s Report…to an email stating your intent to file a formal complaint was not specific and it lacked the requisite signature.” Final Agency Decision at 1. The Agency further reasoned tha t Complainant’s submission of the signed
form on March 29, 2019 which referenced the EEO Counselor’s Report “did not provide the specificity required for the Agency to know the issues about which [Complainant was] complaining.”
Finally, the Agency found C omplainant’s March 29, 2019 submission (containing the formal
complaint form) to be untimely because it was beyond the applicable 15- day time limit.
The instant appeal followed.
2 In a May 30, 2019 statement to the Commission, Complainant states
that she believed that her complaint was sufficient and that she was following instructions set forth in the Notice. Complainant further states that when the EEO Counselor initially sent her the Notice , he did not send her the formal complaint form. Complainant states that she sent the formal
complaint form back on March 29, 2019 per the EEO O fficial’s instructions. Complainant states
that she referenced her EEO Counselor’s Report in rega rd to her allegations “as they were exactly
the same.”
2 The record reflects that Complainant retained an attorney after the Agency issued a final decision.
The record contains a Notice of Entry of Appearance from Complainant’s attorney dated June 13, 2019.
3 2019003623
Complainant, through her attorney, asserts that her formal complaint should not be dismissed for
lack of signature or untimely filing of the formal complaint because she subsequently provided her
signature and the formal complaint form by the deadline set forth by the Agency. Complainant
further asserts that any problems with deadlines and technicalities with her formal complaint were
due to medical incapacity issues. M oreover, Complainant asserts that she is alleging a continuing
violation from January 2019 to the present when the Agency denied her reasonable
accommodations for her disabilities.
In response, the Agency’s requests that we affirm its final decision. The Agency reiterates that
Complainant’s two submissions to the EEO Co unselor did not meet the requirements of a forma l
complaint and that Complainant failed to make a timely, complete response to the Notice.
Specifically, the Agency states that “[Complainant] admittedly only sought to notify the Agency
of her intention to subsequently file a formal complaint rather than making her formal complaint with sufficient detail to enable her claims to proceed.” The Agency also notes that Complainant
did not initially serve a copy of her appeal with the Agency until the Agency received a Notice of Entry of Appearance by Complainant’s Attorney on June 17, 2019.
Legal Analysis:
the Commission’s website.
2 2019003623
On March 4, 2019, Complainant responded via email that she received the Notice. On March 19,
2019, Complainant s ent an email to the address for filing formal complaints which was provided
in the Notice. In the March 19, 2019 email, Complainant stated “t his email serves as my formal
EEO complaint…I have attached my EEO Counseling Report. ”
By email dated March 26, 2019, the Agency’s Coordinator for f ormal EEO complaints (EEO
Official) contacted Complainant . The EEO Official stated that Complainant’s Marc h 19, 2019
email did not contain a formal complaint form. The EEO O fficial acknowledged that Complainant
had not previously been provided a formal complaint form and that the Agency was now sending one “to rectify this matter.” The EEO Official asked Com plainant to complete, sign, and date the
formal complaint form and return it to the EEO official by March 29, 2019.
By email dated March 29, 2019, Complainant responded to the EEO official providing the formal complaint form. Complainant had signed and d ated the formal complaint form . In section 13 of
the formal complaint form, which asked how a complainant believed they were discriminated against, Complainant wrote , “[p]lease see EEO Counselor’s Report dated March 4, 2019.”
In its final decision date d May 1 , 2019, the Agency dismissed Complainant’s formal complaint.
The Agency found that Complainant’s March 19, 2019 email submission did not meet the standard for filing a formal complaint. Specifically, t he Agency stated that the submission “was not signed
and it was not specific. Simply, attaching your EEO Counselor’s Report…to an email stating your intent to file a formal complaint was not specific and it lacked the requisite signature.” Final Agency Decision at 1. The Agency further reasoned tha t Complainant’s submission of the signed
form on March 29, 2019 which referenced the EEO Counselor’s Report “did not provide the specificity required for the Agency to know the issues about which [Complainant was] complaining.”
Finally, the Agency found C omplainant’s March 29, 2019 submission (containing the formal
complaint form) to be untimely because it was beyond the applicable 15- day time limit.
The instant appeal followed.
2 In a May 30, 2019 statement to the Commission, Complainant states
that she believed that her complaint was sufficient and that she was following instructions set forth in the Notice. Complainant further states that when the EEO Counselor initially sent her the Notice , he did not send her the formal complaint form. Complainant states that she sent the formal
complaint form back on March 29, 2019 per the EEO O fficial’s instructions. Complainant states
that she referenced her EEO Counselor’s Report in rega rd to her allegations “as they were exactly
the same.”
2 The record reflects that Complainant retained an attorney after the Agency issued a final decision.
The record contains a Notice of Entry of Appearance from Complainant’s attorney dated June 13, 2019.
3 2019003623
Complainant, through her attorney, asserts that her formal complaint should not be dismissed for
lack of signature or untimely filing of the formal complaint because she subsequently provided her
signature and the formal complaint form by the deadline set forth by the Agency. Complainant
further asserts that any problems with deadlines and technicalities with her formal complaint were
due to medical incapacity issues. M oreover, Complainant asserts that she is alleging a continuing
violation from January 2019 to the present when the Agency denied her reasonable
accommodations for her disabilities.
In response, the Agency’s requests that we affirm its final decision. The Agency reiterates that
Complainant’s two submissions to the EEO Co unselor did not meet the requirements of a forma l
complaint and that Complainant failed to make a timely, complete response to the Notice.
Specifically, the Agency states that “[Complainant] admittedly only sought to notify the Agency
of her intention to subsequently file a formal complaint rather than making her formal complaint with sufficient detail to enable her claims to proceed.” The Agency also notes that Complainant
did not initially serve a copy of her appeal with the Agency until the Agency received a Notice of Entry of Appearance by Complainant’s Attorney on June 17, 2019.
ANALYSIS AND FINDINGS
As an initial matter, the Agency asserts that Complainant failed to initially serve the Agency with a copy of her appeal and that her complaint should be dismissed. The Agency acknowledges that it subsequently received notice of Complainant’s appeal on June 17, 2019 when it received a Notice of Entry of Appearance from Compl ainant’s attorney. The Agency has also had an
opportunity to submit a response brief which we have considered in rendering this decision. Thus, we find the Agency has not been harmed by Complainant’s procedural error. See Holderman v.
Dep’t of Agriculture , EEOC Request No. 05930875 (June 2, 1994).
Requirements of 29 C.F.R. § 1614.106(c)
EEOC Regulation 29 C.F.R. § 1614.106(c) provides a complaint must contain a signed statement
from the person claiming to be aggrieved or that person’s attorney. This statement must be sufficiently precise to identify the aggrieved individual and the agency and to describe generally the action( s) or practice(s) that form the basis of the complaint.
We are not persuaded by the Agency’s arguments that Complainant failed to meet the requirement s
of 29 C.F.R. § 1614.106(c) with respect to Complainant’s signature . The record reflects that
Complaina nt was not initially provided a copy of the formal complaint form by the Agency when
the EEO c ounselor sent her the Notice. The Agency subsequently sent Complainant a copy of the
formal complaint form in its March 26, 2019 email and requested that Complai nant sign and
complete the formal complaint form by March 29, 2019. Complainant responded by the assigned deadline and submitted a signed formal complaint form. The Commission has previously
instructed agencies to allow a complainant an opportunity to c orrect a technical defect such as a
lack of a signature, prior to dismissing the complainant’s formal complaint. See Pineda v. U.S.
Postal Serv ., EEOC Appeal No. 01940017 (Dec. 29, 1993).
4 2019003623
We are also not persuaded by the Agency’s argument that Complainant’s reference to the EEO
Counselor Report in her formal complaint fails to meet the specificity requirements of 29 C.F.R.
§ 1614.106(c). The Notice specifically set s forth that Complainant’s claims in the formal
complaint may only be ones raised during EEO c ounseling. The Notice defined the claim on which
Complainant received EEO counseling as a denial of a reasonable accommodation (including telework) with respect to the basis of disability. In addition, the EEO Counselor’s Report clearly
sets forth Complainant’s denial of a reasonable accommodation claims, lists pertinent dates, and
the alleged responsible management official.
3 Based on the foregoing, we find that Complainant’s
reference to the EEO Counselor’s Report in her formal complaint w as sufficient to describe
generally the action (s) or practice (s) that form the basis of her complaint.
Dismissal for Untimely Filing of the Formal Complaint
The regulation set forth at 29 C.F.R. § 1614.107(a)(2) states, in pertinent part, that an agency shall dismiss a complaint which fails to comply with the applicable time limits contained in 29 C.F.R. § 1614.106, which, in turn, requires the filing of a for mal complaint within fifteen (15) days of
receiving notice of the right to do so.
The Agency improperly dismissed Complainant’s formal complaint on the grounds it was untimely
filed. The record reflects that Complainant received the Notice on March 4, 2019. As discussed above, t he Notice did not include a copy of the formal complaint form. On March 19, 2019 (within
the applicable time period), Complainant emailed the address set forth in the Notice and we
conclude her email constituted her formal complaint . An EEO Official subsequently sent her the
formal complaint form and asked her to sign and complete it by March 29, 2019. Complainant followed the EEO Official’s instruction s and signed and completed the form on March 29, 2019.
As set forth above, we find that Complainant’s reference to her EEO Counselor Report was
sufficient to set forth the action that was the basis for her complaint.5 Based on the foregoing, we
find that Complainant formal complaint was timely filed.
We REVERSE the Agency’s fin al decision dismissing the formal complaint and we REMAND
these matters to the Agency for further processing in accordance with the ORDER below.
3 Equal Employment Opportunity Management Directive f or 29 C.F.R. Part 1614 (EEO MD -110)
Ch. 2, (V)(A)(2) (rev. Aug 5, 2015) provides, in pertinent part, that the EEO Counselor must be
certain that the claims are clearly defined and the aggrieved person agrees with how the agency defines the claim.
4 In an attachment to her brief, Complainant submits a signed declaration under penalty of perjury
asserting that no time between March 19, 2019 and May 1, 2019, did the Agency contact her to
clarify her claims .
5 On the formal complaint form, Complainant checked disability as the basis for her complaint.
5 2019003623
ORDER (E0618)
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.
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 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 statemen t 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 seven (7) calendar days of the completion of each ordered corrective action, the Agency shall submit via the Federal Sector EEO Portal (F edSEP) 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 repor t 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 compli ance 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 com plaint 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.
6 2019003623
Failure by an agency to either file a compliance r eport 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 CFR § 1614.503(f) for enforcement by that agency. | Elly C. ,1
Complainant,
v.
Barbara Stewart ,
Chief Executive Officer,
Corporation for National and Community Service,
Agency.
Appeal No. 2019003623
Agency No. 04-19-001
DECISION
Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC
or Commission) from the Agency's decision dated May 1 , 2019, dismissing a formal complaint of
unlawful employment discrimination in violation of the 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 for the Agency as a Senior Human Capital
Consultant in Washington, D.C. In January 2019, Complainant initiated the EEO process by contacting an Agency EEO counselor .
On March 2, 2019, t he EEO counselor sent Complainant a Notice of Right to File a Formal
Complaint (Notice) via email. The Notice provided, in pertinent part, “[y]ou are now entitled to
file a formal complaint of discrimination on the allegations raised during the pre -complaint
process. Specifically, whether you were subjected to discrimination and harassment b ased on
disability (physical and mental) concerning the following matters: denial of disability
accommodation and denial of telework schedule.” The Notice informed Complaint that she must submit a formal complaint within 15 days of receipt of the Notice.
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 2019003623
On March 4, 2019, Complainant responded via email that she received the Notice. On March 19,
2019, Complainant s ent an email to the address for filing formal complaints which was provided
in the Notice. In the March 19, 2019 email, Complainant stated “t his email serves as my formal
EEO complaint…I have attached my EEO Counseling Report. ”
By email dated March 26, 2019, the Agency’s Coordinator for f ormal EEO complaints (EEO
Official) contacted Complainant . The EEO Official stated that Complainant’s Marc h 19, 2019
email did not contain a formal complaint form. The EEO O fficial acknowledged that Complainant
had not previously been provided a formal complaint form and that the Agency was now sending one “to rectify this matter.” The EEO Official asked Com plainant to complete, sign, and date the
formal complaint form and return it to the EEO official by March 29, 2019.
By email dated March 29, 2019, Complainant responded to the EEO official providing the formal complaint form. Complainant had signed and d ated the formal complaint form . In section 13 of
the formal complaint form, which asked how a complainant believed they were discriminated against, Complainant wrote , “[p]lease see EEO Counselor’s Report dated March 4, 2019.”
In its final decision date d May 1 , 2019, the Agency dismissed Complainant’s formal complaint.
The Agency found that Complainant’s March 19, 2019 email submission did not meet the standard for filing a formal complaint. Specifically, t he Agency stated that the submission “was not signed
and it was not specific. Simply, attaching your EEO Counselor’s Report…to an email stating your intent to file a formal complaint was not specific and it lacked the requisite signature.” Final Agency Decision at 1. The Agency further reasoned tha t Complainant’s submission of the signed
form on March 29, 2019 which referenced the EEO Counselor’s Report “did not provide the specificity required for the Agency to know the issues about which [Complainant was] complaining.”
Finally, the Agency found C omplainant’s March 29, 2019 submission (containing the formal
complaint form) to be untimely because it was beyond the applicable 15- day time limit.
The instant appeal followed.
2 In a May 30, 2019 statement to the Commission, Complainant states
that she believed that her complaint was sufficient and that she was following instructions set forth in the Notice. Complainant further states that when the EEO Counselor initially sent her the Notice , he did not send her the formal complaint form. Complainant states that she sent the formal
complaint form back on March 29, 2019 per the EEO O fficial’s instructions. Complainant states
that she referenced her EEO Counselor’s Report in rega rd to her allegations “as they were exactly
the same.”
2 The record reflects that Complainant retained an attorney after the Agency issued a final decision.
The record contains a Notice of Entry of Appearance from Complainant’s attorney dated June 13, 2019.
3 2019003623
Complainant, through her attorney, asserts that her formal complaint should not be dismissed for
lack of signature or untimely filing of the formal complaint because she subsequently provided her
signature and the formal complaint form by the deadline set forth by the Agency. Complainant
further asserts that any problems with deadlines and technicalities with her formal complaint were
due to medical incapacity issues. M oreover, Complainant asserts that she is alleging a continuing
violation from January 2019 to the present when the Agency denied her reasonable
accommodations for her disabilities.
In response, the Agency’s requests that we affirm its final decision. The Agency reiterates that
Complainant’s two submissions to the EEO Co unselor did not meet the requirements of a forma l
complaint and that Complainant failed to make a timely, complete response to the Notice.
Specifically, the Agency states that “[Complainant] admittedly only sought to notify the Agency
of her intention to subsequently file a formal complaint rather than making her formal complaint with sufficient detail to enable her claims to proceed.” The Agency also notes that Complainant
did not initially serve a copy of her appeal with the Agency until the Agency received a Notice of Entry of Appearance by Complainant’s Attorney on June 17, 2019.
ANALYSIS AND FINDINGS
As an initial matter, the Agency asserts that Complainant failed to initially serve the Agency with a copy of her appeal and that her complaint should be dismissed. The Agency acknowledges that it subsequently received notice of Complainant’s appeal on June 17, 2019 when it received a Notice of Entry of Appearance from Compl ainant’s attorney. The Agency has also had an
opportunity to submit a response brief which we have considered in rendering this decision. Thus, we find the Agency has not been harmed by Complainant’s procedural error. See Holderman v.
Dep’t of Agriculture , EEOC Request No. 05930875 (June 2, 1994).
Requirements of 29 C.F.R. § 1614.106(c)
EEOC Regulation 29 C.F.R. § 1614.106(c) provides a complaint must contain a signed statement
from the person claiming to be aggrieved or that person’s attorney. This statement must be sufficiently precise to identify the aggrieved individual and the agency and to describe generally the action( s) or practice(s) that form the basis of the complaint.
We are not persuaded by the Agency’s arguments that Complainant failed to meet the requirement s
of 29 C.F.R. § 1614.106(c) with respect to Complainant’s signature . The record reflects that
Complaina nt was not initially provided a copy of the formal complaint form by the Agency when
the EEO c ounselor sent her the Notice. The Agency subsequently sent Complainant a copy of the
formal complaint form in its March 26, 2019 email and requested that Complai nant sign and
complete the formal complaint form by March 29, 2019. Complainant responded by the assigned deadline and submitted a signed formal complaint form. The Commission has previously
instructed agencies to allow a complainant an opportunity to c orrect a technical defect such as a
lack of a signature, prior to dismissing the complainant’s formal complaint. See Pineda v. U.S.
Postal Serv ., EEOC Appeal No. 01940017 (Dec. 29, 1993).
4 2019003623
We are also not persuaded by the Agency’s argument that Complainant’s reference to the EEO
Counselor Report in her formal complaint fails to meet the specificity requirements of 29 C.F.R.
§ 1614.106(c). The Notice specifically set s forth that Complainant’s claims in the formal
complaint may only be ones raised during EEO c ounseling. The Notice defined the claim on which
Complainant received EEO counseling as a denial of a reasonable accommodation (including telework) with respect to the basis of disability. In addition, the EEO Counselor’s Report clearly
sets forth Complainant’s denial of a reasonable accommodation claims, lists pertinent dates, and
the alleged responsible management official.
3 Based on the foregoing, we find that Complainant’s
reference to the EEO Counselor’s Report in her formal complaint w as sufficient to describe
generally the action (s) or practice (s) that form the basis of her complaint.
Dismissal for Untimely Filing of the Formal Complaint
The regulation set forth at 29 C.F.R. § 1614.107(a)(2) states, in pertinent part, that an agency shall dismiss a complaint which fails to comply with the applicable time limits contained in 29 C.F.R. § 1614.106, which, in turn, requires the filing of a for mal complaint within fifteen (15) days of
receiving notice of the right to do so.
The Agency improperly dismissed Complainant’s formal complaint on the grounds it was untimely
filed. The record reflects that Complainant received the Notice on March 4, 2019. As discussed above, t he Notice did not include a copy of the formal complaint form. On March 19, 2019 (within
the applicable time period), Complainant emailed the address set forth in the Notice and we
conclude her email constituted her formal complaint . An EEO Official subsequently sent her the
formal complaint form and asked her to sign and complete it by March 29, 2019. Complainant followed the EEO Official’s instruction s and signed and completed the form on March 29, 2019.
As set forth above, we find that Complainant’s reference to her EEO Counselor Report was
sufficient to set forth the action that was the basis for her complaint.5 Based on the foregoing, we
find that Complainant formal complaint was timely filed.
We REVERSE the Agency’s fin al decision dismissing the formal complaint and we REMAND
these matters to the Agency for further processing in accordance with the ORDER below.
3 Equal Employment Opportunity Management Directive f or 29 C.F.R. Part 1614 (EEO MD -110)
Ch. 2, (V)(A)(2) (rev. Aug 5, 2015) provides, in pertinent part, that the EEO Counselor must be
certain that the claims are clearly defined and the aggrieved person agrees with how the agency defines the claim.
4 In an attachment to her brief, Complainant submits a signed declaration under penalty of perjury
asserting that no time between March 19, 2019 and May 1, 2019, did the Agency contact her to
clarify her claims .
5 On the formal complaint form, Complainant checked disability as the basis for her complaint.
5 2019003623
ORDER (E0618)
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.
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 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 statemen t 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 seven (7) calendar days of the completion of each ordered corrective action, the Agency shall submit via the Federal Sector EEO Portal (F edSEP) 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 repor t 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 compli ance 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 com plaint 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.
6 2019003623
Failure by an agency to either file a compliance r eport 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 CFR § 1614.503(f) for enforcement by that agency.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0617)
The Commission may, in its discretion, reconsider the decision in this case if the Complainant or the Agency submits a written request containing arguments or evidence which tend to establish that:
1. The appellate decision involved a clearly erroneous interpretation of material fact or
law; or
2. The appellate decision will have a substantial impact on the policies, practices, or
operations of the Agency.
Requests to reconsider, with supporting statement or brief , must be filed with the Office of Federal
Operations (OFO) within thirty (30) calendar days of receipt of this decision. A party shall have
twenty (20) calendar days of receipt of another party’s timely request for reconsideration in
which to submit a br ief or statement in opposition. See 29 C.F.R. § 1614.405; Equal Employment
Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD -110), at Chap. 9 § VII.B
(Aug. 5, 2015). All requests and arguments must be submitted to the Director, Office of Fe deral
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 Fed eral 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 untime ly, 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.
7 2019003623
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
September 17, 2019
Date | [
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"Pineda v. U.S. Postal Serv ., EEOC Appeal No. 01940017 (Dec. 29, 1993)",
"29 C.F.R. § 1614.106(c)",
"29 C.F.R. § 1614.107(a)",
"29 C.F.R. § 1614.106",
"29 C.F.R. § 1614.108",
"29 C.F.R. § 1614.405(c)",
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144 | https://www.eeoc.gov/sites/default/files/decisions/2022_11_04/2022002885.pdf | 2022002885.pdf | PDF | application/pdf | 17,742 | Kristie O .,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Field Areas and Regions), Agency. | March 31, 2022 | Appeal Number: 2022002885
Background:
During the period at issue, Complainant worked for the Agency as a Mail Handler in Hazelwood,
Missouri. On March 11, 2022, Complainant filed a formal complaint alleging that the Agency subjected
her to discrimination based on genetic information a nd in reprisal for prior protected activity. On
March 31, 2020, the Agency issued a final decision dismissing the complaint . Therein, the
Agency determined that the formal complaint was comprised of the following claims:
1. From October 2020 to November 2020, Complainant was harassed daily
and experienced problems with clock rights, missing timecards, and missing pay/work hours.
2. In December 2020 and ongoing, [Complainant was] required to work over
six hours with no break, not allowed to use her inhaler, ca lled into the
office regularly and given multiple assignment by different supervisors .
3. On February 2, 2021, [Complainant was] issued a Notice of Removal for
lying on [her] application about an alleged removal in 2004.
The Agency dismissed the formal comp laint for alleging the same matters raised in prior EEO
complaints. Regarding claim (1), the Agency found that Complainant previously raised these matt ers in
Agency Case No. 1J -631-0007- 21. The Agency determined t hat Complainant was sent a Notice
of Ri ght to File a Formal Complaint regarding this prior EEO case on February 1, 2021, but that
Complainant did not file a formal complaint. Regarding claims (2) and (3), the Agency found
that Complainant previously raised these matters in Agency Case No. 1J -631-0039- 21. The
Agency determined that Complainant was sent a Notice of Right to File a Formal Complaint
regarding this prior EEO case on May 20, 2021, but again did not file a formal complaint. The
Agency reasoned, “[Complainant] received notice on [her] prior complaints and [was] informed
of [her] rights and how to pursue [her] complaints to the formal stage yet [she] chose not to
advance [her] claims to the form al stage, thus [her] prior complaints are considered
abandoned/withdrawn.” Final Agency Decis ion at 2.
In a footnote, in its final decision, the Agency also set forth that Complainant’s EEO contact on December 1, 2021 was untimely for all incidents raised in the instant complaint.
The instant appeal followed. On appeal, Complainant asserts tha t she inquired multiple times
about her past EEO cases but did not receive a Notice of Right to File . She asserts further that
she had tried to contact her named EEO Counselor associated with her prior EEO cases to no
avail. Complainant also includes, on appeal, screenshots which she asserts are attempts at her
trying to contact the EEO Counselor involved in her prior EEO cases.
2 We advise the Agency to set forth all dismissal grounds in the body of its final decision, rather
than a footnote , to provide complainants with proper notice of all dismissal gr ounds and an
opportunity to respond.
Legal Analysis:
EEOC Regulation 29 C.F.R. § 1614.107(a)(1) provides for the dismissal of complaints that state
the same claim as a claim which has already been decided by the agency or the Equal
Employment Opportunity Commission. We find that the Agency improperly dismissed the
instant formal complaint for having raised the same matters in prior EEO complaints.
We acknowledge the record contains printouts regarding some past EEO activity by Complainant. These printouts contain a chronology of some prior EEO cases. The record contains a printout for Agency Case No. 1J-631-0007-21. According to the printout for this prior EEO case, Complainant alleged harassment based on time and pay issues with a listed i ncident
date of October 30, 2020. We concur with the Agency that these are the same matters raised i n
incident (1) of the instant complaint. The record also contains an entry that a Notice of Right to File was issued on February 1, 2021, in this matter.
The record also contains a printout containing the chronology of another prior EEO case for Complain ant, Agency Case No. 1J -631-0039- 21. According to this printout, Complainant
alleged that she was harassed and not allowed breaks and lunches, among other claims . In
addition, the printouts reflect that another informal complaint, Agency Case No. PRE -007410-
2021, was included with Agency Case No. 1J -631-0039- 21. Agency Case No. PRE -007410-
2021 includes the allegation that on February 10, 2021, Complainant was informed that she was being removed from Agency employment. The record also contains an entry t hat a Notice of
Right to File was issued on May 20, 2021 for this matter. Based on the foregoing, we find that
these are the same matters, Complainant raised in incidents (2) and (3) of the instant complaint. Complainant, however, alleges that she did not receive the Notices for Right to File Formal
Complaints (Notices) regarding these past EEO cases, Agency Case Nos. 1J-631-0007- 21 and
1J-6310039-21.
3 We acknowledge that the printouts, referenced above, contain entries that the
Agency issued Notices with respect to these past complaint . However, the record does not
contain copies of the actual Notices that the Agency sent to Complainant in these past EEO cases. In addition, the record does not contain evidence that Complainant actually received the
Notices.
4 Based on the foregoing, we do not find that Complainant abandoned or withdrew these
matters.
3 We note that in the EEO Contact Summary Form for the instant matter, Complainant asserts
that, “I filed a couple of [cases] and no thing seems to be happening nor have I been able to
[reach] anyone about what is going on.”
4 Complainant, on appeal, asserts she tried to contact a named EEO Counselor involved in the
processing of her past EEO cases. The printouts pertaining to Complainant’s past EEO cases list this EEO Counselor as “inactive.”
Dismissal for Untimely EEO Counselor Contact
EEOC Regulation 29 C.F.R. § 1614.105(a)(1) requires that complaints of discrimination should be brought to the attention of the Equal Employment Opportunity Counselor within forty- five
(45) days of the date of the matter alleged to be discriminatory or, in the case of a personnel
action, within forty- five (45) days of the effective date of the action. The Commission has
adopted a "reasonable suspicion" standard (as opposed to a "supportive facts" standard) to determine when the forty- five (45) day limitation period is triggered. See Howard v. Dep’t of
the Navy , EEOC Request No. 05970852 (Feb. 11, 1999). Thus, the time limitation is not
triggered until a complainant reasonably suspects discrimination, but before all the facts that support a charge of discrimination have become apparent.
EEOC regulations provide that the agency or the Commission shall extend the t ime 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 di ligence he was prevented by circumstances
beyond his control from contacting the Counselor within the time limits, or for other reasons considered sufficient by the agency or the Commission.
The Agency improperly dismissed the formal complaint for untimely EEO Counselor contact.
As set forth above, we find that Complainant previously raised the matters herein in past EEO Cases, Agency Case Nos. 1J-631-0007- 21 and 1J -631-0039- 21. The record is devoid of
evidence that Complainant received Notices regarding these past EEO cases. The documentation
on Complainant’s past EEO cases reflect that she initiated EEO contact on November 1, 2020 for Agency Case No. 1J -631-0007-21, on February 5, 2021 for Agency Case No. 1J -631-0039-21,
and on February 11, 2021 for PRE-007410- 2021. In the instant matter , Complainant alleged
ongoing discrimination from October 2020- February 2021 when she was informed that the
Agency was removing her from Agency employment. Thus, we find that the EEO contact dates associated with her past EEO cases were timely. As set forth above, Complainant asserts that the
Agency did not respond to her inquiries regarding her past EEO cases and did not process these matters. | Kristie O .,1
Complainant,
v.
Louis DeJoy,
Postmaster General,
United States Postal Service
(Field Areas and Regions),
Agency.
Appeal No. 2022002885
Agency No. 1F-641-0069-22
DECISION
Complainant filed a n appeal with the Equal Employment Opportunity Commission (EEOC or
Com mission) from the Agency's final decision dated March 31, 2022, dismissing a formal
complaint alleging unlawful employment discrimination in violation of Title II of the Gen etic
Information Nondiscrimination Act of 2008, 42 U.S.C. § 2000ff et seq.
BACKGROUND
During the period at issue, Complainant worked for the Agency as a Mail Handler in Hazelwood,
Missouri. On March 11, 2022, Complainant filed a formal complaint alleging that the Agency subjected
her to discrimination based on genetic information a nd in reprisal for prior protected activity. On
March 31, 2020, the Agency issued a final decision dismissing the complaint . Therein, the
Agency determined that the formal complaint was comprised of the following claims:
1. From October 2020 to November 2020, Complainant was harassed daily
and experienced problems with clock rights, missing timecards, and missing pay/work hours.
2. In December 2020 and ongoing, [Complainant was] required to work over
six hours with no break, not allowed to use her inhaler, ca lled into the
office regularly and given multiple assignment by different supervisors .
3. On February 2, 2021, [Complainant was] issued a Notice of Removal for
lying on [her] application about an alleged removal in 2004.
The Agency dismissed the formal comp laint for alleging the same matters raised in prior EEO
complaints. Regarding claim (1), the Agency found that Complainant previously raised these matt ers in
Agency Case No. 1J -631-0007- 21. The Agency determined t hat Complainant was sent a Notice
of Ri ght to File a Formal Complaint regarding this prior EEO case on February 1, 2021, but that
Complainant did not file a formal complaint. Regarding claims (2) and (3), the Agency found
that Complainant previously raised these matters in Agency Case No. 1J -631-0039- 21. The
Agency determined that Complainant was sent a Notice of Right to File a Formal Complaint
regarding this prior EEO case on May 20, 2021, but again did not file a formal complaint. The
Agency reasoned, “[Complainant] received notice on [her] prior complaints and [was] informed
of [her] rights and how to pursue [her] complaints to the formal stage yet [she] chose not to
advance [her] claims to the form al stage, thus [her] prior complaints are considered
abandoned/withdrawn.” Final Agency Decis ion at 2.
In a footnote, in its final decision, the Agency also set forth that Complainant’s EEO contact on December 1, 2021 was untimely for all incidents raised in the instant complaint.
The instant appeal followed. On appeal, Complainant asserts tha t she inquired multiple times
about her past EEO cases but did not receive a Notice of Right to File . She asserts further that
she had tried to contact her named EEO Counselor associated with her prior EEO cases to no
avail. Complainant also includes, on appeal, screenshots which she asserts are attempts at her
trying to contact the EEO Counselor involved in her prior EEO cases.
2 We advise the Agency to set forth all dismissal grounds in the body of its final decision, rather
than a footnote , to provide complainants with proper notice of all dismissal gr ounds and an
opportunity to respond.
ANALYSIS AND FINDINGS
Dismissal for Alleg ing the Same Claim Raised in Prior Complaints
EEOC Regulation 29 C.F.R. § 1614.107(a)(1) provides for the dismissal of complaints that state
the same claim as a claim which has already been decided by the agency or the Equal
Employment Opportunity Commission. We find that the Agency improperly dismissed the
instant formal complaint for having raised the same matters in prior EEO complaints.
We acknowledge the record contains printouts regarding some past EEO activity by Complainant. These printouts contain a chronology of some prior EEO cases. The record contains a printout for Agency Case No. 1J-631-0007-21. According to the printout for this prior EEO case, Complainant alleged harassment based on time and pay issues with a listed i ncident
date of October 30, 2020. We concur with the Agency that these are the same matters raised i n
incident (1) of the instant complaint. The record also contains an entry that a Notice of Right to File was issued on February 1, 2021, in this matter.
The record also contains a printout containing the chronology of another prior EEO case for Complain ant, Agency Case No. 1J -631-0039- 21. According to this printout, Complainant
alleged that she was harassed and not allowed breaks and lunches, among other claims . In
addition, the printouts reflect that another informal complaint, Agency Case No. PRE -007410-
2021, was included with Agency Case No. 1J -631-0039- 21. Agency Case No. PRE -007410-
2021 includes the allegation that on February 10, 2021, Complainant was informed that she was being removed from Agency employment. The record also contains an entry t hat a Notice of
Right to File was issued on May 20, 2021 for this matter. Based on the foregoing, we find that
these are the same matters, Complainant raised in incidents (2) and (3) of the instant complaint. Complainant, however, alleges that she did not receive the Notices for Right to File Formal
Complaints (Notices) regarding these past EEO cases, Agency Case Nos. 1J-631-0007- 21 and
1J-6310039-21.
3 We acknowledge that the printouts, referenced above, contain entries that the
Agency issued Notices with respect to these past complaint . However, the record does not
contain copies of the actual Notices that the Agency sent to Complainant in these past EEO cases. In addition, the record does not contain evidence that Complainant actually received the
Notices.
4 Based on the foregoing, we do not find that Complainant abandoned or withdrew these
matters.
3 We note that in the EEO Contact Summary Form for the instant matter, Complainant asserts
that, “I filed a couple of [cases] and no thing seems to be happening nor have I been able to
[reach] anyone about what is going on.”
4 Complainant, on appeal, asserts she tried to contact a named EEO Counselor involved in the
processing of her past EEO cases. The printouts pertaining to Complainant’s past EEO cases list this EEO Counselor as “inactive.”
Dismissal for Untimely EEO Counselor Contact
EEOC Regulation 29 C.F.R. § 1614.105(a)(1) requires that complaints of discrimination should be brought to the attention of the Equal Employment Opportunity Counselor within forty- five
(45) days of the date of the matter alleged to be discriminatory or, in the case of a personnel
action, within forty- five (45) days of the effective date of the action. The Commission has
adopted a "reasonable suspicion" standard (as opposed to a "supportive facts" standard) to determine when the forty- five (45) day limitation period is triggered. See Howard v. Dep’t of
the Navy , EEOC Request No. 05970852 (Feb. 11, 1999). Thus, the time limitation is not
triggered until a complainant reasonably suspects discrimination, but before all the facts that support a charge of discrimination have become apparent.
EEOC regulations provide that the agency or the Commission shall extend the t ime 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 di ligence he was prevented by circumstances
beyond his control from contacting the Counselor within the time limits, or for other reasons considered sufficient by the agency or the Commission.
The Agency improperly dismissed the formal complaint for untimely EEO Counselor contact.
As set forth above, we find that Complainant previously raised the matters herein in past EEO Cases, Agency Case Nos. 1J-631-0007- 21 and 1J -631-0039- 21. The record is devoid of
evidence that Complainant received Notices regarding these past EEO cases. The documentation
on Complainant’s past EEO cases reflect that she initiated EEO contact on November 1, 2020 for Agency Case No. 1J -631-0007-21, on February 5, 2021 for Agency Case No. 1J -631-0039-21,
and on February 11, 2021 for PRE-007410- 2021. In the instant matter , Complainant alleged
ongoing discrimination from October 2020- February 2021 when she was informed that the
Agency was removing her from Agency employment. Thus, we find that the EEO contact dates associated with her past EEO cases were timely. As set forth above, Complainant asserts that the
Agency did not respond to her inquiries regarding her past EEO cases and did not process these matters.
Accordingly, we REVERSE the Agency’s final decision dismissing the instant complaint and we REMAND this matter to the Agency for further 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 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 appropri ate rights within one hundred fifty (150) calendar days of the date this decision was
issued, unless the matter is otherwise resolved pr ior to that time.
If the Complainant requests a final decision without a hearing, the Agency shall issue a final
decisi on 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 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 seven (7) calendar days of the completion of each ordered corrective action, the Agency shall submit via the Federal Sector EEO Portal (FedSEP) suppor ting 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 digi tal 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
C
ommission 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 (M0920)
The Commission may, in its discretion, reconsider this appellate decision if Complainant or the Agency submits a written request that contains arguments or evidence that tend to establish that:
1. The appellate decision involved a clearly erroneous interpretation of material fact or
law; or
2. The appellate decision will have a substantial impact on the policies, practices, or
operations of the agency.
Requests for reconsideration must be filed with EEOC’s Office of Federal Operations (OFO)
within thirty (30) calendar days of receipt of this decision. If the party requesting reconsideration elects to file a statement or brief in support of the request, that statement or brief must be filed together with the request for reconsideration . A party shall have twenty
(20) calendar days from receipt of another party’s request for reconsideration within which to submit a brief or statement in opposition. See 29 C.F.R. § 1614.405; Equal Employment
Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD -110), at Chap. 9 § VII.B
(Aug. 5, 2015).
Complainant should submit his or her request for reconsideration, and any statement or brief in
support of his or her request, via the EEOC Public Portal, which can be found at
https://publicportal.eeoc.gov/Portal/Login.aspx
Alternatively, Complainant can submit his or her request and arguments to the Director, Office
of Federal Operations, Equal Employment Opportunity Commission, via regular mail addressed to P.O. Box 77960, Washington, DC 20013, or by certified mail addressed to 131 M Str eet, NE,
Washington, DC 20507. In the absence of a legible postmark, a complainant’s request to recon sider 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 Federa l Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Either party’s request
and/or statement or brief in opposition must also include proof of service on the other party, unless Complainant files his or her request via the EEOC Public Portal, in which case no proof of service is required.
Failure to file within the 30 -d
ay time period will result in dismissal of the party’s request for
reconsiderati on as untimely, unless extenuating circumstances prevented the timely filing of the
request. Any supporting documentation must be submitted together with the request for
reconsideration. The Commission will consider requests for reconsideration filed after the deadline only in very limited circumstances. See 29 C.F.R. § 1614.604(c).
COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION (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 Distric t 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 depart ment 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 c ivil 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 17, 2022
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145 | https://www.eeoc.gov/sites/default/files/decisions/2023_04_21/2021003834.pdf | 2021003834.pdf | PDF | application/pdf | 18,410 | Irene W.,1 Complainant, v. Denis R. McDonough, Secretary, Department of Veterans Affairs (Veterans Health Administration), Agency. | June 23, 2021 | Appeal Number: 2021003834
Background:
During the relevant time, Complain ant worked as a Medical Records Coder at the Agency’s
Medical Center (VAMC) in New Orleans, Louisiana. The Le ad Outpatient Coder (hereinafter
“Supervisor” ) was her first -line supervisor . The Chief of Medical Administra tion Service
(hereinafter “Chief ”) was her second -line supervisor. In the course of her job, Complainant
intera cted with a Veteran ’s Exper ience O ffice (herei nafter “Co-worker ”), an employee from the
Baton Rouge Clinic, who would sometimes come to the New Orleans VAM C and seek
documents from her at the Release of Information office.
According to C ompl ainant, on November 10, 2018, Coworker (African American, male ) looked
at her up and down with his tongue hanging out. Weeks later, on January 3, 2019, he alleged
said to her: “ just put it [vagina] in my face and let the j uices flow. ”
On January 7, 2019, C omplain ant complained reported th e sexual harassment to the Me dical
Center Director ( hereinafter “Director ”). The Director ( White/Hispanic, male ) refer red
Complainant to the EEO Manage r.2 The EEO Manager interv iewed Co-worker (who denied
Complainant ’s claims) and in structe d him not to speak or have contact with C omplainant.
Following her inquiry, the EEO Manager was unable to determine whether t he alleged events
occurred. No further inc ident s were reported by C omplainant.
On January 25, 2019, C omplainant contacted an EEO Counselor regardi ng the alleged events .
Less than a week later, on January 31, 2019, Chief (African -American, female) asked to meet
with C omplain ant. According to C omplain ant, at the meeting Chief asked her if she w as going
to drop her EEO case and that she needed an answer by the end of the day. S he reported the
exchange to the EEO Manager and her Employee Assistance Program (EAP) Counselor.
On February 15, 2019, Complainant filed a formal EEO com plaint , based on sex and race,
regard ing the incidents with Co -worker an d Chief ’s alleged efforts to get her t o withdr aw her
complaint. During the investigation, Complainant also added the bases of disability (anxiety) and reprisal for prior prote cted EEO activity.
After an investigation
3, the Agency provided Complainant with a copy of the report of
investigation and notice of her right to request a hearing before an EEOC Administrative Judge
(AJ). Complainant timely requested a hearing, but subsequently withdrew her request.
Consequentl y, on May 24, 2021, the Agency issue d a final decision pursuant to 29 C.F.R.
§ 1614.110(b).
2 The Agency is reminded that “ [a]lthough EEO offices in many ag encies are often responsibl e
for establishing anti -harassment policies, it important to understand that the EEO process and
anti-harassment programs do not exist for the same purpose. ” The EEO process is to make
individuals whole for proven discrimination that has occurred. The inte rnal anti-harassment
program is i ntended to take “immediate and appropriate corrective action ” to eliminate harassing
conduct, reg ardless of whether it v iolates the law. Model EEO Programs Must Have An
Effective Anti- Harassment Program, (available at
https://www.eeoc.gov/federal/model_eeo_programs.cfm .)
3 In its decision, the Agency stated that Compl ainant in itially requested a n Agency decision but it
was determined that a supplementa l investigation was necessary. Following the completion of
the supple mental investigation, Complaina nt then requested a hearing but subsequently withdrew
the request , as noted abo ve.
In its final decision, the Age ncy concluded that there was insufficient ev idence to support a
finding that the sexual harass ment by Co- worker occurred. Regarding the November 10, 2018
incident, Co- worker stated it was a Saturday and he was not working. The Agency found his
assertion was corroborated by timecar ds. As for the January 3, 2019 comment, Co-worker
denied making the statement and there were no witnesse s. M oreover, the Agency found
discrepancies in t he descriptions presented by the individuals Complain ant spoke to about the
January 2019 incident , as well as a lack of clarity regarding when the event transp ired.
Therefore, the Agency found Complainant di d not esta blish a prima facie case of sexual
harassmen t.
However, in considering Complainant ’s meetin g with Chief, the Agency found evidence of
reprisal. Chief ’s recollection of the January 2019 meeting differed from C omplain ant’s
recollection. Specifically , Chief attested that she simp ly asked Complainant i f she wanted C hief
to take any action or needed Emplo yee Ass istance and to let her know by the end of the day.
The EEO Manager stated , however, that she asked Chief to advise Complainant to give EEO
Manager a call and let her know if she was going to withdr aw her EEO compl aint.4 Moreove r,
EEO Manager stated that when C omplain ant contacted her , voicing concerns over the Chief ’s
questi ons, EEO Manager expla ined Chief had done so at the EEO Manager ’s sugges tion and
apologized to Complai nant. The Agency concluded that both EEO Manager and C hief initiated
conversations with Complain ant about withdr awing her EEO matter , which C omplain ant viewed
as coer cive. A suppleme ntal investigation regarding C omplain ant’s entitlement to compensatory
damages was ordered. Additionally , the Agency ordered training for the relevant officials and
consideration of disciplin ary actions.
Complainant filed the instant appeal, which she limited to the Agency ’s finding that she was not
subjec ted to sexual haras sment by Co- worker. Therefore, we wi ll not consider the Agency ’s
finding of reprisal with regard to the conversations with Complainant about withdrawing her
EEO complaint.
Legal Analysis:
the Commission. 29 C.F.R.
§ 1614.405(a). See Equal Employment Opportunity Mana gement 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 previ ous decision maker,” and that EEOC “review t he documents,
statements, and t estimony of record, including any timely and relevant submissions of the
4 EEO Manager described an earlier conversation with C omplainant, regarding the poss ible
withdr awal of her complaint, since Cowo rker had been instructed not to contact her.
Complain ant, however , denies expressing any thoughts of wi thdrawing her EEO co mplaint.
parties, and . . . issue its decision based on the Commissi on’s own assessment of the record and
its interpr etation of th e law”).
Sexual Harassment
For Complainant to establish a prima facie case of sexual harassment, she must prove, by a
preponderance of the evidence, the existence of five elements: (1) that she is a member of a
statutorily protected class; ( 2) that s he was subjected to unwelcome conduct related to h er sex;
(3) that the harassment complained of was based on her sex; (4) that the harassment had the
purpose or effect of unreasonably inter fering wi th her work performance and/or creating an
intimidating, hostile, or offensive work environme nt; and (5) that there is a bas is for imputing
liability to the employer. See Henson v. City of Dundee , 682 F.2d 897, 903 (11th Cir. 1982). The
harasser's conduct should be evaluated from the objective viewpoint of a reasonable person in
the victim's circu mstances. Enforcement Guidance on Harris v. Forklift Systems Inc., EEOC
Notice No. 915.002 (March 8, 1994).
Here, Complain ant has established membership in prote cted classes. However, we agree with
the Agency ’s determination that she has not shown the second element: that she was subjected to
unwelcome conduct .
The regulation set forth under 29 C.F.R. § 1614.108(b) requires the Agency to create an impartial an d appropriate factual record upon which to make f indings on the claims raised by the
written complaint. An “a ppropriate fact ual record” is “one that allows a reasonable fact finder to
draw | Irene W.,1
Complainant,
v.
Denis R. McDonough,
Secretary,
Department of Veterans Affairs
(Veterans Health Administration),
Agency.
Appeal No. 2021003834
Hearing No. 461-2020-00052X
Agency No. 2003-0629-2019101652
DECISION
On June 23, 2021, Complainant filed an appeal with the Equal Employment Opportunity
Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from an Agency final decision, dated May 24, 2021, concerning an equal employme nt opportunity (EEO)
complaint claim ing employment discrimination in violation of Title VII of the Civil Rights Act
of 1964 (Title VII), as amended, 42 U.S.C. § 2000e et seq., and Section 501 of the Rehabilitati on
Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. The C ommission accepts
the appeal in accordance with 29 C.F.R. § 1614.405.
BACKGROUND
During the relevant time, Complain ant worked as a Medical Records Coder at the Agency’s
Medical Center (VAMC) in New Orleans, Louisiana. The Le ad Outpatient Coder (hereinafter
“Supervisor” ) was her first -line supervisor . The Chief of Medical Administra tion Service
(hereinafter “Chief ”) was her second -line supervisor. In the course of her job, Complainant
intera cted with a Veteran ’s Exper ience O ffice (herei nafter “Co-worker ”), an employee from the
Baton Rouge Clinic, who would sometimes come to the New Orleans VAM C and seek
documents from her at the Release of Information office.
According to C ompl ainant, on November 10, 2018, Coworker (African American, male ) looked
at her up and down with his tongue hanging out. Weeks later, on January 3, 2019, he alleged
said to her: “ just put it [vagina] in my face and let the j uices flow. ”
On January 7, 2019, C omplain ant complained reported th e sexual harassment to the Me dical
Center Director ( hereinafter “Director ”). The Director ( White/Hispanic, male ) refer red
Complainant to the EEO Manage r.2 The EEO Manager interv iewed Co-worker (who denied
Complainant ’s claims) and in structe d him not to speak or have contact with C omplainant.
Following her inquiry, the EEO Manager was unable to determine whether t he alleged events
occurred. No further inc ident s were reported by C omplainant.
On January 25, 2019, C omplainant contacted an EEO Counselor regardi ng the alleged events .
Less than a week later, on January 31, 2019, Chief (African -American, female) asked to meet
with C omplain ant. According to C omplain ant, at the meeting Chief asked her if she w as going
to drop her EEO case and that she needed an answer by the end of the day. S he reported the
exchange to the EEO Manager and her Employee Assistance Program (EAP) Counselor.
On February 15, 2019, Complainant filed a formal EEO com plaint , based on sex and race,
regard ing the incidents with Co -worker an d Chief ’s alleged efforts to get her t o withdr aw her
complaint. During the investigation, Complainant also added the bases of disability (anxiety) and reprisal for prior prote cted EEO activity.
After an investigation
3, the Agency provided Complainant with a copy of the report of
investigation and notice of her right to request a hearing before an EEOC Administrative Judge
(AJ). Complainant timely requested a hearing, but subsequently withdrew her request.
Consequentl y, on May 24, 2021, the Agency issue d a final decision pursuant to 29 C.F.R.
§ 1614.110(b).
2 The Agency is reminded that “ [a]lthough EEO offices in many ag encies are often responsibl e
for establishing anti -harassment policies, it important to understand that the EEO process and
anti-harassment programs do not exist for the same purpose. ” The EEO process is to make
individuals whole for proven discrimination that has occurred. The inte rnal anti-harassment
program is i ntended to take “immediate and appropriate corrective action ” to eliminate harassing
conduct, reg ardless of whether it v iolates the law. Model EEO Programs Must Have An
Effective Anti- Harassment Program, (available at
https://www.eeoc.gov/federal/model_eeo_programs.cfm .)
3 In its decision, the Agency stated that Compl ainant in itially requested a n Agency decision but it
was determined that a supplementa l investigation was necessary. Following the completion of
the supple mental investigation, Complaina nt then requested a hearing but subsequently withdrew
the request , as noted abo ve.
In its final decision, the Age ncy concluded that there was insufficient ev idence to support a
finding that the sexual harass ment by Co- worker occurred. Regarding the November 10, 2018
incident, Co- worker stated it was a Saturday and he was not working. The Agency found his
assertion was corroborated by timecar ds. As for the January 3, 2019 comment, Co-worker
denied making the statement and there were no witnesse s. M oreover, the Agency found
discrepancies in t he descriptions presented by the individuals Complain ant spoke to about the
January 2019 incident , as well as a lack of clarity regarding when the event transp ired.
Therefore, the Agency found Complainant di d not esta blish a prima facie case of sexual
harassmen t.
However, in considering Complainant ’s meetin g with Chief, the Agency found evidence of
reprisal. Chief ’s recollection of the January 2019 meeting differed from C omplain ant’s
recollection. Specifically , Chief attested that she simp ly asked Complainant i f she wanted C hief
to take any action or needed Emplo yee Ass istance and to let her know by the end of the day.
The EEO Manager stated , however, that she asked Chief to advise Complainant to give EEO
Manager a call and let her know if she was going to withdr aw her EEO compl aint.4 Moreove r,
EEO Manager stated that when C omplain ant contacted her , voicing concerns over the Chief ’s
questi ons, EEO Manager expla ined Chief had done so at the EEO Manager ’s sugges tion and
apologized to Complai nant. The Agency concluded that both EEO Manager and C hief initiated
conversations with Complain ant about withdr awing her EEO matter , which C omplain ant viewed
as coer cive. A suppleme ntal investigation regarding C omplain ant’s entitlement to compensatory
damages was ordered. Additionally , the Agency ordered training for the relevant officials and
consideration of disciplin ary actions.
Complainant filed the instant appeal, which she limited to the Agency ’s finding that she was not
subjec ted to sexual haras sment by Co- worker. Therefore, we wi ll not consider the Agency ’s
finding of reprisal with regard to the conversations with Complainant about withdrawing her
EEO complaint.
ANALYSIS AND FINDINGS
Standard of Review
As this is an appeal from a decision is sued without a hearing, pursuant to 29 C.F.R.
§ 1614.110(b), the Agency's decision is subject to de novo review by the Commission. 29 C.F.R.
§ 1614.405(a). See Equal Employment Opportunity Mana gement 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 previ ous decision maker,” and that EEOC “review t he documents,
statements, and t estimony of record, including any timely and relevant submissions of the
4 EEO Manager described an earlier conversation with C omplainant, regarding the poss ible
withdr awal of her complaint, since Cowo rker had been instructed not to contact her.
Complain ant, however , denies expressing any thoughts of wi thdrawing her EEO co mplaint.
parties, and . . . issue its decision based on the Commissi on’s own assessment of the record and
its interpr etation of th e law”).
Sexual Harassment
For Complainant to establish a prima facie case of sexual harassment, she must prove, by a
preponderance of the evidence, the existence of five elements: (1) that she is a member of a
statutorily protected class; ( 2) that s he was subjected to unwelcome conduct related to h er sex;
(3) that the harassment complained of was based on her sex; (4) that the harassment had the
purpose or effect of unreasonably inter fering wi th her work performance and/or creating an
intimidating, hostile, or offensive work environme nt; and (5) that there is a bas is for imputing
liability to the employer. See Henson v. City of Dundee , 682 F.2d 897, 903 (11th Cir. 1982). The
harasser's conduct should be evaluated from the objective viewpoint of a reasonable person in
the victim's circu mstances. Enforcement Guidance on Harris v. Forklift Systems Inc., EEOC
Notice No. 915.002 (March 8, 1994).
Here, Complain ant has established membership in prote cted classes. However, we agree with
the Agency ’s determination that she has not shown the second element: that she was subjected to
unwelcome conduct .
The regulation set forth under 29 C.F.R. § 1614.108(b) requires the Agency to create an impartial an d appropriate factual record upon which to make f indings on the claims raised by the
written complaint. An “a ppropriate fact ual record” is “one that allows a reasonable fact finder to
draw conclusions as to whether discrimination occurred.” § 1614.108(b). Upon receipt of the
ROI, complainants are provide d an opportunity to cure defects in the record by eithe r not ifying
the agen cy, in writing , of any perceived deficiencies in the investigation, or by requesting a
hearing before an AJ . See EEO Management Dire ctive 110, at Ch. 6, § XI and Ch. 7, § I.
In th e instant c ase, we find the ROI is suffic iently developed to create an “app ropriate factual
record , upon which we can make a finding.” While C ompl ainant asserts the incidents with Co -
worker occurred, she adm its there were no witnesses. Co- worker, in contrast , denies making
either statement. The inquiry c onducted imme diately following Complainant ’s report of the
allegatio ns to D irector was also unable to conclude the events occurred as alleged. Despite
withdr awing her request for a hearin g before an AJ, on appeal Complainant raises issues of
credibility . If Complainant wanted to d evelop the record by challenging testimony and findings
of Agency officials through cross examination , she should have requested a h earing before an
AJ. See Meghann M. v. Dep't of V eterans Affairs , EEOC Appeal No. 0120152380 (Nov. 17,
2017). By choosing not to request a hearing before an AJ, she waived the opportunity to develop the record through discovery and to cross examine witness es. See Tommy O. v. United States
Postal Serv. , EEOC Appeal No. 0120152090 (Jun e 8, 2017). Upon review, we find the Agency
developed an appropriate factual record, which we have considered, along with Complainant's
evidence.
Based on our review of the record, we find that Complainant did not meet her burden because, at
best, the evidence is equipoise. See Lore v. Dep't of Home land Sec. , EEOC Appeal No.
0120113283 (Sept . 13, 2013) (credibility determinations were unavailable after a withdrawal of a
reque st for a hearing such that complainant could not show that opposing witnesses had made
false statements); Brand v. Dep't of Agr ic., EEOC Appeal No. 0120102187 (Aug. 23, 2012)
(complainant failed to establish that a co -worker made offensive comments in a “he said, she
said” situation where complainant request ed a final decision and an A J did not make credibility
determinations ).
Moreover, e ven assuming arguendo that Complainant could establish the first four elements of a
prima facie case, we find not support for imputing liab ility to the Agency (element (5)) . In the
case of co -worker harassment, an agency is liable for acts of harassment in the workplace where
the agency either provi ded no reasonable avenue for complaint or knew of the harassment but
did nothing about it. See Enforcement Guidance: Vicarious Liability for Unlawful Harassment
by Supervisors , at n.58, EEOC Notice No. 915.002 (June 18, 1999)
Furthermore, an agency will be liable for harassment by a coworker or non -employee if
management knew or sh ould have known of the misconduct, unless the agenc y can show that it
took immediate and appropriate corrective action. Enfo rcement Guidance, supra , citing 29
C.F.R. § 1604.11(d) .
The instant record reflects that imme diately after C omplain ant reported t he allegations to
Director on January 7, 2019, he contacted the EEO Manager . By January 9, 2019, the EEO
Manager had conduc ted an inquiry, interviewing both C omplain ant and C o-worker.
Additionally , Co-worker ’s supervisor attested that he was contacted by Director and EEO
Manager on January 8, 2019. While he was not told what the specific allegations were, Co -
worker’s supervis or stated he was directed to instruct Co- worker to c ease all contact wit h
Complainant. Complainant herself attested that no further interactions with Co -worker occurred.
Therefore, we find no basis for imputing liability to the Agency beca use the record p ersuasively
shows that management took prompt and effective remedial action.
CONCLUSION
Based on a thor ough review of the record a nd the contentions on appeal, we AFFI RM the
Agency ’s final decision.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M 0920)
The Commission may, in its discr etion, 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 substanti al impact on the policies, practices, or
operations of the agency.
Requests for reconsideration must be filed with EEOC’s Office of Federal Operations (OFO)
withi n thirt y (30) calendar days of receipt of this decision. If the party requesting
reconsideration elects to file a statement o r brief in support of the request, that statement or
brief must be filed together with the request for reconsideration . A party s hall ha ve twenty
(20) calendar days from receipt of another party’s request for reconsiderati on within which to
submit a brief or statement in oppos ition. 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 reque st for reconsideration, and any s tatement 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 h er 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 rec onsideration 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
recon sideration as untimely, unless extenuati ng circumstance s prevented the timely filing of the
request. Any supporting documentation must be submitted together with t he request for
reconsideration. The C ommission will consider requests for reconsideration f iled after the
deadline only in very limited circumstan ces. See 29 C.F.R. § 1614.604(c).
COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION (S0610)
You have the right to f ile a civil action in an appropriate U nited States District Court within
ninety (90) calendar days from the date that you rec eive this decision. I f you file a civil action,
you must name as the defendant in the complaint the person who is the official Age ncy head or
department head, identifyi ng that person by his or her full name and official ti tle. Failure to do
so may result in the dismissal of y our case in court. “Agency” or “department” means the
national organization, and not the local office, facil ity or department in which you work. I f you
file a request to reconsider and also file a civ il action, filing a civil action will terminate the
adm inistrative processing of your complaint .
RIGHT TO REQUEST COUNSEL (Z0815)
If you want to file a civil actio n but cannot pay the fees, costs, or s ecurity to do so, you may
request permission from the court to proceed with the civil a ction without paying t hese 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 attor ney for you. You must submit the requests for waiver o f
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. S uch requests do not alter
the time limits for filing a civil action (please read the paragra ph titled Complainant’s Right to
File a Civil Action fo r the specific time limits).
FOR THE COMMISSION:
______________________________ Carlton M. Hadden’s si gnature
Carlton M. Hadden, Director
Office of Federal Operations
March 9, 2023
Date | [
"Meghann M. v. Dep't of V eterans Affairs , EEOC Appeal No. 0120152380 (Nov. 17, 2017)",
"Tommy O. v. United States Postal Serv., EEOC Appeal No. 0120152090 (Jun e 8, 2017)",
"Lore v. Dep't of Home land Sec. , EEOC Appeal No. 0120113283 (Sept . 13, 2013)",
"Brand v. Dep't of Agr ic., EEOC Appeal No. 012010218... | [
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146 | https://www.eeoc.gov/sites/default/files/migrated_files/decisions/01982658.txt | 01982658.txt | TXT | text/plain | 16,994 | September 2, 1997 | Appeal Number: 01982658
Case Facts:
Appellant filed a timely appeal with the Equal Employment Opportunity
Commission (EEOC or Commission) from a final agency decision (FAD)
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 Commission hereby accepts the appeal in
accordance with EEOC Order No. 960, as amended.
The issue on appeal is whether the agency properly dismissed the
appellant's complaint, pursuant to 29 C.F.R. §1614.105(a)(1), for failure
to make timely contact with an EEO Counselor.
Appellant alleges that she was discriminated against on the bases of race
(Black), and reprisal (EEO activity), when her supervisor treated her
unfairly and in a hostile manner on 19 separate occasions dating from
October 1996 to September 2, 1997.<1> The agency dismissed the complaint
based on all of these allegations except for the September 2, 1997,
incident, which it accepted for investigation. The agency contends that
the appellant did not make initial EEO Counselor contact, with the intent
to initiate the EEO process, until September 3, 1997, more than 45 days
after all of the alleged incidents of discrimination which were dismissed.
It is undisputed that appellant contacted an EEO counselor by telephone
on June 17, 1997, and met with the counselor the next day. It is also
undisputed that appellant made several telephone calls to the counselor
between this time and September 2, 1997, and that the counselor called
appellant on one occasion as well during this same period. What is
disputed is whether the appellant intended to initiate the EEO process
via the June 18, 1997, meeting with the EEO counselor, or via the several
telephone communications prior to September 2, 1997.
Legal Analysis:
The Commission hereby accepts the appeal in
accordance with EEOC Order No. 960, as amended.
The issue on appeal is whether the agency properly dismissed the
appellant's complaint, pursuant to 29 C.F.R. §1614.105(a)(1), for failure
to make timely contact with an EEO Counselor.
Appellant alleges that she was discriminated against on the bases of race
(Black), and reprisal (EEO activity), when her supervisor treated her
unfairly and in a hostile manner on 19 separate occasions dating from
October 1996 to September 2, 1997.<1> The agency dismissed the complaint
based on all of these allegations except for the September 2, 1997,
incident, which it accepted for investigation. The agency contends that
the appellant did not make initial EEO Counselor contact, with the intent
to initiate the EEO process, until September 3, 1997, more than 45 days
after all of the alleged incidents of discrimination which were dismissed.
It is undisputed that appellant contacted an EEO counselor by telephone
on June 17, 1997, and met with the counselor the next day. It is also
undisputed that appellant made several telephone calls to the counselor
between this time and September 2, 1997, and that the counselor called
appellant on one occasion as well during this same period. What is
disputed is whether the appellant intended to initiate the EEO process
via the June 18, 1997, meeting with the EEO counselor, or via the several
telephone communications prior to September 2, 1997.
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 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 time
limitation is not triggered until a complainant reasonably suspects
discrimination, but before all the facts that support a charge of
discrimination have become apparent.
EEOC Regulations provide that the agency or the Commission shall extend
the time limits when the individual shows that she was not notified of the
time limits and was not otherwise aware of them, that she did not know
and reasonably should not have known that the discriminatory matter or
personnel action occurred, that despite due diligence she was prevented
by circumstances beyond his control from contacting the Counselor within
the time limits, or for other reasons considered sufficient by the agency
or the Commission.
It is well settled that EEO contact is not timely under the above law and
regulations unless there is intent to initiate the EEO process through
the contact. Snyder v. Department of Defense, EEOC Request No. 05901061.
On appeal, both appellant and the EEO counselor in question provide
sworn statements that are completely at odds with respect to appellant's
intent when she made contact prior to September 2, 1997. According to
the EEO counselor, appellant stated that she did not wish to initiate
the EEO process unless her own attempts to resolve the dispute failed.
According to appellant, she was under the impression that she initiated
the EEO process during the June 18, 1997, meeting, and that she indicated
September 3, 1997, as the date of initial contact on the formal complaint
in error.
Because this ambiguity cannot be fairly addressed based on these
statements alone, we must evaluate the appellant's intent based on her
actions during the period in question.
On appeal, appellant states that she contacted the EEO counselor
by telephone to arrange a meeting after her supervisor berated her
and shouted at her on June 11, 1997. She had a two hour meeting
with the EEO counselor on June 18, 1997. Over a two month period,
she met several times with management officials about the problems
she was having with her supervisor, reporting back each time to the
EEO counselor. On or about July 16, 1997, the EEO counselor called
appellant to inquire about her progress. At that point, appellant
informed the EEO counselor that she would contact her again when she
returned from two weeks of leave. According to appellant, she contacted
the EEO counselor again in August to check on the status of her case,
and was given the impression that it was proceeding in the normal course.
The EEO counselor states that this conversation did not occur. However,
it appears that appellant's attempts to resolve this matter on her own
ceased at this time. After receiving a negative performance evaluation
on September 2, 1997, appellant called the EEO counselor to arrange a
meeting on September 3, 1997, when she was given a pre-complaint form
and Notice of Rights and Responsibilities.
A review of these facts clearly shows that appellant's intent was to
preserve her EEO rights by making timely contact with the EEO counselor,
but that she also desired to resolve the dispute herself, apparently
trying to avoid filing an EEO complaint if possible. She was quite
conscientious about maintaining contact with the EEO counselor to
report her progress throughout her attempts to settle the dispute,
thus demonstrating diligence in pursuing her rights. We find that
this continuous and repeated contact between the appellant and the
EEO counselor is strong evidence of appellant's intent to pursue the
EEO process, especially in conjunction with the two hour meeting which
took place on June 18, 1997. The meeting on September 3, 1997, merely
formalized the process which had been on-going. We also find that it is
certainly plausible that September 3, 1997, was erroneously reported as
the initial contact date because it is the same date the pre-complaint
form was received by the appellant.
Therefore, we find that appellant's contact with the EEO counselor on
June 17, 1997, was done with the intent of pursuing the EEO process and
so that all alleged incidents of discrimination dating back 45 days, to
May 3, 1997, are deemed timely. This would include appellant's allegations
(o), (p), and (q), as identified in the FAD.
On appeal, appellant asserts that the allegations identified as (a)
through (n), in the FAD, dating from October 1996 to April 1997, should
also be accepted by the agency for investigation under the theory of
continuing violation.
The Commission has held that the time requirements for initiating EEO
counseling could be waived as to certain allegations within a complaint
when the complainant alleged a continuing violation; that
is, a series of related discriminatory acts, one of which fell
within the time period for contacting an EEO Counselor. See
McGivern v. U.S. Postal Service, EEOC Request No. 05901150 (December 28,
1990); Starr v. U.S. Postal Service, EEOC Appeal No. 01890412 (April
6, 1989).
A determination of whether a series of discrete acts constitutes
a continuing violation depends on the interrelatedness of the past
and present acts. Berry v. Board of Supervisors, 715 F.2d 971, 981
(5th Cir. 1983), cert. denied, 479 U.S. 868 (1986). It is necessary
to determine whether the acts are interrelated by a common nexus or
theme. See Vissing v. Nuclear Regulatory Commission, EEOC Request
No. 05890308 (June 13, 1989); Verkennes v. Department of Defense, EEOC
Request No. 05900700 (September 21, 1990); Maldonado v. Department of
the Interior, EEOC Request No. 05900937 (October 31, 1990). Should such
a nexus exist, appellant will have established a continuing violation
and the agency would be obligated to "overlook the untimeliness of the
complaint with respect to some of the acts" challenged by appellant.
Scott v. Claytor, 469 F. Supp. 22, 26 (D. D.C. 1978).
In paragraph 5 of the FAD, the agency concedes that the appellant
established the required nexus to support a claim for a continuing
violation with respect to allegations (a) through (q). However,
because the agency determined that the June 1997 contact was not timely,
none of these allegations fell within the 45 day time period, so that a
continuing violation could not be established for this reason. Of course,
based on our above analysis and determination, we find that EEO contact
was timely with respect to allegations (o), (p), and (q), so that both
elements of a continuing violation have been established. Therefore,
we find that the agency's dismissal was improper and that allegations
(a) through (n) should be accepted by the agency for investigation. | Cecelia Golden, )
Appellant, )
)
v. ) Appeal No. 01982658
) Agency No. 980027001
Richard J. Danzig, )
Secretary, )
Department of the Navy, )
Agency. )
______________________________)
DECISION
Appellant filed a timely appeal with the Equal Employment Opportunity
Commission (EEOC or Commission) from a final agency decision (FAD)
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 Commission hereby accepts the appeal in
accordance with EEOC Order No. 960, as amended.
The issue on appeal is whether the agency properly dismissed the
appellant's complaint, pursuant to 29 C.F.R. §1614.105(a)(1), for failure
to make timely contact with an EEO Counselor.
Appellant alleges that she was discriminated against on the bases of race
(Black), and reprisal (EEO activity), when her supervisor treated her
unfairly and in a hostile manner on 19 separate occasions dating from
October 1996 to September 2, 1997.<1> The agency dismissed the complaint
based on all of these allegations except for the September 2, 1997,
incident, which it accepted for investigation. The agency contends that
the appellant did not make initial EEO Counselor contact, with the intent
to initiate the EEO process, until September 3, 1997, more than 45 days
after all of the alleged incidents of discrimination which were dismissed.
It is undisputed that appellant contacted an EEO counselor by telephone
on June 17, 1997, and met with the counselor the next day. It is also
undisputed that appellant made several telephone calls to the counselor
between this time and September 2, 1997, and that the counselor called
appellant on one occasion as well during this same period. What is
disputed is whether the appellant intended to initiate the EEO process
via the June 18, 1997, meeting with the EEO counselor, or via the several
telephone communications prior to September 2, 1997.
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 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 time
limitation is not triggered until a complainant reasonably suspects
discrimination, but before all the facts that support a charge of
discrimination have become apparent.
EEOC Regulations provide that the agency or the Commission shall extend
the time limits when the individual shows that she was not notified of the
time limits and was not otherwise aware of them, that she did not know
and reasonably should not have known that the discriminatory matter or
personnel action occurred, that despite due diligence she was prevented
by circumstances beyond his control from contacting the Counselor within
the time limits, or for other reasons considered sufficient by the agency
or the Commission.
It is well settled that EEO contact is not timely under the above law and
regulations unless there is intent to initiate the EEO process through
the contact. Snyder v. Department of Defense, EEOC Request No. 05901061.
On appeal, both appellant and the EEO counselor in question provide
sworn statements that are completely at odds with respect to appellant's
intent when she made contact prior to September 2, 1997. According to
the EEO counselor, appellant stated that she did not wish to initiate
the EEO process unless her own attempts to resolve the dispute failed.
According to appellant, she was under the impression that she initiated
the EEO process during the June 18, 1997, meeting, and that she indicated
September 3, 1997, as the date of initial contact on the formal complaint
in error.
Because this ambiguity cannot be fairly addressed based on these
statements alone, we must evaluate the appellant's intent based on her
actions during the period in question.
On appeal, appellant states that she contacted the EEO counselor
by telephone to arrange a meeting after her supervisor berated her
and shouted at her on June 11, 1997. She had a two hour meeting
with the EEO counselor on June 18, 1997. Over a two month period,
she met several times with management officials about the problems
she was having with her supervisor, reporting back each time to the
EEO counselor. On or about July 16, 1997, the EEO counselor called
appellant to inquire about her progress. At that point, appellant
informed the EEO counselor that she would contact her again when she
returned from two weeks of leave. According to appellant, she contacted
the EEO counselor again in August to check on the status of her case,
and was given the impression that it was proceeding in the normal course.
The EEO counselor states that this conversation did not occur. However,
it appears that appellant's attempts to resolve this matter on her own
ceased at this time. After receiving a negative performance evaluation
on September 2, 1997, appellant called the EEO counselor to arrange a
meeting on September 3, 1997, when she was given a pre-complaint form
and Notice of Rights and Responsibilities.
A review of these facts clearly shows that appellant's intent was to
preserve her EEO rights by making timely contact with the EEO counselor,
but that she also desired to resolve the dispute herself, apparently
trying to avoid filing an EEO complaint if possible. She was quite
conscientious about maintaining contact with the EEO counselor to
report her progress throughout her attempts to settle the dispute,
thus demonstrating diligence in pursuing her rights. We find that
this continuous and repeated contact between the appellant and the
EEO counselor is strong evidence of appellant's intent to pursue the
EEO process, especially in conjunction with the two hour meeting which
took place on June 18, 1997. The meeting on September 3, 1997, merely
formalized the process which had been on-going. We also find that it is
certainly plausible that September 3, 1997, was erroneously reported as
the initial contact date because it is the same date the pre-complaint
form was received by the appellant.
Therefore, we find that appellant's contact with the EEO counselor on
June 17, 1997, was done with the intent of pursuing the EEO process and
so that all alleged incidents of discrimination dating back 45 days, to
May 3, 1997, are deemed timely. This would include appellant's allegations
(o), (p), and (q), as identified in the FAD.
On appeal, appellant asserts that the allegations identified as (a)
through (n), in the FAD, dating from October 1996 to April 1997, should
also be accepted by the agency for investigation under the theory of
continuing violation.
The Commission has held that the time requirements for initiating EEO
counseling could be waived as to certain allegations within a complaint
when the complainant alleged a continuing violation; that
is, a series of related discriminatory acts, one of which fell
within the time period for contacting an EEO Counselor. See
McGivern v. U.S. Postal Service, EEOC Request No. 05901150 (December 28,
1990); Starr v. U.S. Postal Service, EEOC Appeal No. 01890412 (April
6, 1989).
A determination of whether a series of discrete acts constitutes
a continuing violation depends on the interrelatedness of the past
and present acts. Berry v. Board of Supervisors, 715 F.2d 971, 981
(5th Cir. 1983), cert. denied, 479 U.S. 868 (1986). It is necessary
to determine whether the acts are interrelated by a common nexus or
theme. See Vissing v. Nuclear Regulatory Commission, EEOC Request
No. 05890308 (June 13, 1989); Verkennes v. Department of Defense, EEOC
Request No. 05900700 (September 21, 1990); Maldonado v. Department of
the Interior, EEOC Request No. 05900937 (October 31, 1990). Should such
a nexus exist, appellant will have established a continuing violation
and the agency would be obligated to "overlook the untimeliness of the
complaint with respect to some of the acts" challenged by appellant.
Scott v. Claytor, 469 F. Supp. 22, 26 (D. D.C. 1978).
In paragraph 5 of the FAD, the agency concedes that the appellant
established the required nexus to support a claim for a continuing
violation with respect to allegations (a) through (q). However,
because the agency determined that the June 1997 contact was not timely,
none of these allegations fell within the 45 day time period, so that a
continuing violation could not be established for this reason. Of course,
based on our above analysis and determination, we find that EEO contact
was timely with respect to allegations (o), (p), and (q), so that both
elements of a continuing violation have been established. Therefore,
we find that the agency's dismissal was improper and that allegations
(a) through (n) should be accepted by the agency for investigation.
Accordingly, we VACATE the FAD and REMAND allegations (a) through (q)
to the agency in accordance with this decision and the ORDER below.
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 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. §1614.10.
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.
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.F.R.).
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 31, 1999
____________________________
DATE Ronnie Blumenthal, Director
Office of Federal Operations
1On appeal, appellant withdraws the allegation identified as s in
the FAD, alleged to have taken place on November 4, 1997, requesting
that it be considered as background information with respect to the
other allegations.
| [
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"EEO Counselor. See McGivern v. U.S. Postal Service, EEOC Request No. 05901150 (December 28, 1990)",
"Starr v. U.S. Postal Service, EEOC Appeal No. 01890412 (April 6, 1989)",
"Vissing v. Nuclear Regulatory Commission, EEOC Request No. 05890308 (June 13... | [
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147 | https://www.eeoc.gov/sites/default/files/migrated_files/decisions/0120121710.pdf | 0120121710.pdf | PDF | application/pdf | 12,821 | February
8, 2012 | Appeal Number: 0120121710
Background:
Complainant filed a formal complaint dated September 26, 2011, alleging that the Agency
subjected her to discrimination and a hostile work environment on the base s of race (African -
American), sex (female), and in reprisal for prior protected EEO activity when:
1. In 2005, Complainant was denied medical care.
2. On June 13, 2008, Complainant was required to participate in shotgun firearms
qualifications, and as a result , suffered injury to her right arm.
3. Subsequent to June 13, 2008, Complainant’s supervisor delayed submission of
her Office of Workers’ Compensation Programs claim form.
4. On unspecified dates, Complainant was subjected to racial epithets.
5. On an unspecified date, Complainant was tasked with all south New Jersey jail pickups for the Criminal Alien Program.
6. On an unspecified date, Complainant was assigned to work in Newark, New Jersey.
7. On unspecified dates, Complainant was tasked with escort details to Senegal and
Niger.
8. On unspecified dates, Complainant was denied a promotion.
The Agency dismissed claims (1) and (3) – (8) as well as Complainant’s claim of hostile work
environment for raising allegations not raised during EEO Counseling. The Agency stated that
the only claim raised during EEO Counseling was being required to fire a shotgun during
firearms qualification in June 2008 ( claim (2)). In addition, the Agency noted that claims (1)
and (3) – (8) were not like or related to the issue raised in counseling . The Agency also
dismissed claim (2) for untimely EEO Counselor contact. Specifically, the Agency noted that
Complainant did not initiate contact with an EEO Counselor until June 13, 2011, three years from the date of the alleged discriminatory incident .
On appeal, Complainant notes that as a result of being required to fire a shotgun on June 13,
2008, she was injured. Complainant states that she filed a workers’ compensation claim in
2008; however, the claim was not accepted until May 26, 2011. Comp lainant notes that in a
May 16, 2011 letter, OWCP determined her injuries were directly related to the firing of the
shotgun. Complainant states that after confirming that her injuries were related to the firing of
the shotgun, she timely made contact wit h an EEO Counselor within 45 days.
Complainant states that on June 13, 2011, she told the EEO Counselor that she was
discriminated against and subjected to retaliation when she was forced to fire the shotgun.
Complainant claims she also mentioned to the EEO Counselor that she had “continuously been
subjected to a hostile work environment and forcing her to fire the shotgun was merely the
most recent form of harassment.” Complainant states that she discussed the incident involving
the shotgun at length wi th the EEO Counselor , and she claims the EEO Counselor told her to
bring up any issues related to the hostile work environment when she filed her complaint.
In response to Complainant’s appeal, the Agency notes that the EEO Counselor’s report states
that Complainant solely raised the issue of being required to fire a shotgun in June 2008,
during the counseling phase. The Agency notes Complainant’s failure to raise other issues is
bolstered by the letter sent to Complainant’s counsel on September 2, 2011, identifying the
sole issue raised by Complainant concerned her OWCP claim regarding being required to use
the shotgun in June 2008. In addition, t he Agency argues that contrary to Complainant’s
assertions, claims (1) and (3) – (8) are not like or related to the issue raised in counseling.
Moreover, the Agency argues that claim (2) was properly dismissed as untimely. Specifically,
the Agency notes that Complainant states she did not contact an EEO Counselor until she had
been notified that her OWCP claim had been accepted because she did not have confirmation
that her injuries were related to firing a gun. The Agency argues that the determination of the
Department of Labor whether to accept her claim had no impact on Complainant’s ability to
file her complaint.
Additionally, the Agency states that issues (1) and (3) – (8) could have been dismissed for
failure to contact an EEO Counselor in a timely manner. The Agency notes that issue (1) concerned medical care from 2005. The Agency notes that issue (3) alleged that
Complainant’s supervisor delayed submission of her OWCP form. The Agency notes
Complainant’s last day working in the office full -time was on August 27, 2008. The Agency
argues that Complainant knew or should have known the form had been delayed within a few
months of providing it to her supervisor, which it states would have been more than two years
prior to her contact with an EEO Counselor. The Agency also notes that issues (4) – (8) must
have occurred prior to August 27, 2008, which was Complainant’s last day working full time in the office. The Agency notes Complainant did not initiate EEO Counselor contact until June 13, 2011, which was beyond the 45- day limitation period.
Legal Analysis:
the Commission AFFIRMS the Agency’s final decision.
BACKGROUND
Complainant filed a formal complaint dated September 26, 2011, alleging that the Agency
subjected her to discrimination and a hostile work environment on the base s of race (African -
American), sex (female), and in reprisal for prior protected EEO activity when:
1. In 2005, Complainant was denied medical care.
2. On June 13, 2008, Complainant was required to participate in shotgun firearms
qualifications, and as a result , suffered injury to her right arm.
3. Subsequent to June 13, 2008, Complainant’s supervisor delayed submission of
her Office of Workers’ Compensation Programs claim form.
4. On unspecified dates, Complainant was subjected to racial epithets.
5. On an unspecified date, Complainant was tasked with all south New Jersey jail pickups for the Criminal Alien Program.
6. On an unspecified date, Complainant was assigned to work in Newark, New Jersey.
7. On unspecified dates, Complainant was tasked with escort details to Senegal and
Niger.
8. On unspecified dates, Complainant was denied a promotion.
The Agency dismissed claims (1) and (3) – (8) as well as Complainant’s claim of hostile work
environment for raising allegations not raised during EEO Counseling. The Agency stated that
the only claim raised during EEO Counseling was being required to fire a shotgun during
firearms qualification in June 2008 ( claim (2)). In addition, the Agency noted that claims (1)
and (3) – (8) were not like or related to the issue raised in counseling . The Agency also
dismissed claim (2) for untimely EEO Counselor contact. Specifically, the Agency noted that
Complainant did not initiate contact with an EEO Counselor until June 13, 2011, three years from the date of the alleged discriminatory incident .
On appeal, Complainant notes that as a result of being required to fire a shotgun on June 13,
2008, she was injured. Complainant states that she filed a workers’ compensation claim in
2008; however, the claim was not accepted until May 26, 2011. Comp lainant notes that in a
May 16, 2011 letter, OWCP determined her injuries were directly related to the firing of the
shotgun. Complainant states that after confirming that her injuries were related to the firing of
the shotgun, she timely made contact wit h an EEO Counselor within 45 days.
Complainant states that on June 13, 2011, she told the EEO Counselor that she was
discriminated against and subjected to retaliation when she was forced to fire the shotgun.
Complainant claims she also mentioned to the EEO Counselor that she had “continuously been
subjected to a hostile work environment and forcing her to fire the shotgun was merely the
most recent form of harassment.” Complainant states that she discussed the incident involving
the shotgun at length wi th the EEO Counselor , and she claims the EEO Counselor told her to
bring up any issues related to the hostile work environment when she filed her complaint.
In response to Complainant’s appeal, the Agency notes that the EEO Counselor’s report states
that Complainant solely raised the issue of being required to fire a shotgun in June 2008,
during the counseling phase. The Agency notes Complainant’s failure to raise other issues is
bolstered by the letter sent to Complainant’s counsel on September 2, 2011, identifying the
sole issue raised by Complainant concerned her OWCP claim regarding being required to use
the shotgun in June 2008. In addition, t he Agency argues that contrary to Complainant’s
assertions, claims (1) and (3) – (8) are not like or related to the issue raised in counseling.
Moreover, the Agency argues that claim (2) was properly dismissed as untimely. Specifically,
the Agency notes that Complainant states she did not contact an EEO Counselor until she had
been notified that her OWCP claim had been accepted because she did not have confirmation
that her injuries were related to firing a gun. The Agency argues that the determination of the
Department of Labor whether to accept her claim had no impact on Complainant’s ability to
file her complaint.
Additionally, the Agency states that issues (1) and (3) – (8) could have been dismissed for
failure to contact an EEO Counselor in a timely manner. The Agency notes that issue (1) concerned medical care from 2005. The Agency notes that issue (3) alleged that
Complainant’s supervisor delayed submission of her OWCP form. The Agency notes
Complainant’s last day working in the office full -time was on August 27, 2008. The Agency
argues that Complainant knew or should have known the form had been delayed within a few
months of providing it to her supervisor, which it states would have been more than two years
prior to her contact with an EEO Counselor. The Agency also notes that issues (4) – (8) must
have occurred prior to August 27, 2008, which was Complainant’s last day working full time in the office. The Agency notes Complainant did not initiate EEO Counselor contact until June 13, 2011, which was beyond the 45- day limitation period.
ANALYSIS AND FINDINGS
The regulation set forth at 29 C.F.R. § 1614.107(a)(2) states, in pertinent part, that an agency shall dismiss a complaint which raises a matter that has not been brought to the attention of an
EEO Counselor, and is not like or related to a matter on which the complainant has received
couns eling. A later claim or complaint is “like or related” to the original complaint if the later
claim or complaint adds to or clarifies the original complaint and could have reasonably been
expected to grow out of the original complaint during the investigat ion. See Scher v. U.S.
Postal Serv. , EEOC Request No. 05940702 (May 30, 1995); Calhoun v. U.S. Postal Serv. ,
EEOC Request No. 05891068 (Mar. 8, 1990).
EEOC Regulation 29 C.F.R. §1614.105(a)(1) provides that an aggrieved person must initiate
contact with a n EEO Counselor within 45 days of the date of the matter alleged to be
discriminatory or, in the case of a personnel action, within 45 days of the effective date of the
action. EOC Regulation 29 C.F.R. §1614.105(a)(2) allows the agency or the Commission t o
extend the time limit if the complainant can establish that complainant was not aware of the time limit, that complainant did not know and reasonably should not have known that the
discriminatory matter or personnel action occurred, that despite due dili gence complainant was
prevented by circumstances beyond (his or her) control from contacting the EEO Counselor
within the time limit, or for other reasons considered sufficient by the agency or Commission.
We note that a review of the record reveals no ev idence that the hostile work environment
claim or claims (1) or (3) – (8) were brought to the attent ion of the EEO Counselor. Nor do
we find that the matter s raised in claims (1) or (3) – (8) like or related to a matter that was
raised during counseling. Therefore, we find that the Ag ency properly dismissed claims (1)
and (3) – (8).
In addition, we note that even if claims (1) and (3) – (8) were raised during EEO Counseling,
we find those claims, as well as claim (2), were not timely raised with an EEO C ounselor. We
note that on appeal, Complainant acknowledges that being forced to f ire the shotgun on June
13, 2008, was the most recent form of harassment she experienced. Thus, although the latest alleged discriminatory incident occurred on June 13, 2008, we note Complainant did not
initiate EEO counselor contact until June 13, 2011, which is beyond the applicable limitations
period. On appeal, Complainant has presented no persuasive arguments or evidence
warranting an extension of the time limit for ini tiating EEO Counselor contact.
Furthermore, we note that even if claim (3) was timely raised with a n EEO Counselor, it
would still be dismissed for failure to state a claim. The Commission has previously held that,
without more, claims concerning delays in submitting paperwork to OWCP, or submitting
incomplete or faulty paperwork, constitute a collateral attack on the OWCP process and not a
claim of discrimination. See Schneider v. U.S. Postal Service , 05A01065 (August 15, 2002).
These concerns are more properly addressed within the OWCP adjudicatory process.
Final Decision:
Accordingly, the Agency’s final decision is AFFIRMED. | Complainant,
v.
Janet Napolitano,
Secretary,
Department of Homeland Security
(Immigration and Customs Enforcement),
Agency.
Appeal No. 0120121710
Agency No. HS -ICE-01398- 2011
DECISION
Complainant filed an appeal with this Commission from the Agency's decision dated February
8, 2012, dismissing her complaint of unlawful employment discrimination in violation of Title
VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. § 2000e et seq. For the following reasons, the Commission AFFIRMS the Agency’s final decision.
BACKGROUND
Complainant filed a formal complaint dated September 26, 2011, alleging that the Agency
subjected her to discrimination and a hostile work environment on the base s of race (African -
American), sex (female), and in reprisal for prior protected EEO activity when:
1. In 2005, Complainant was denied medical care.
2. On June 13, 2008, Complainant was required to participate in shotgun firearms
qualifications, and as a result , suffered injury to her right arm.
3. Subsequent to June 13, 2008, Complainant’s supervisor delayed submission of
her Office of Workers’ Compensation Programs claim form.
4. On unspecified dates, Complainant was subjected to racial epithets.
5. On an unspecified date, Complainant was tasked with all south New Jersey jail pickups for the Criminal Alien Program.
6. On an unspecified date, Complainant was assigned to work in Newark, New Jersey.
7. On unspecified dates, Complainant was tasked with escort details to Senegal and
Niger.
8. On unspecified dates, Complainant was denied a promotion.
The Agency dismissed claims (1) and (3) – (8) as well as Complainant’s claim of hostile work
environment for raising allegations not raised during EEO Counseling. The Agency stated that
the only claim raised during EEO Counseling was being required to fire a shotgun during
firearms qualification in June 2008 ( claim (2)). In addition, the Agency noted that claims (1)
and (3) – (8) were not like or related to the issue raised in counseling . The Agency also
dismissed claim (2) for untimely EEO Counselor contact. Specifically, the Agency noted that
Complainant did not initiate contact with an EEO Counselor until June 13, 2011, three years from the date of the alleged discriminatory incident .
On appeal, Complainant notes that as a result of being required to fire a shotgun on June 13,
2008, she was injured. Complainant states that she filed a workers’ compensation claim in
2008; however, the claim was not accepted until May 26, 2011. Comp lainant notes that in a
May 16, 2011 letter, OWCP determined her injuries were directly related to the firing of the
shotgun. Complainant states that after confirming that her injuries were related to the firing of
the shotgun, she timely made contact wit h an EEO Counselor within 45 days.
Complainant states that on June 13, 2011, she told the EEO Counselor that she was
discriminated against and subjected to retaliation when she was forced to fire the shotgun.
Complainant claims she also mentioned to the EEO Counselor that she had “continuously been
subjected to a hostile work environment and forcing her to fire the shotgun was merely the
most recent form of harassment.” Complainant states that she discussed the incident involving
the shotgun at length wi th the EEO Counselor , and she claims the EEO Counselor told her to
bring up any issues related to the hostile work environment when she filed her complaint.
In response to Complainant’s appeal, the Agency notes that the EEO Counselor’s report states
that Complainant solely raised the issue of being required to fire a shotgun in June 2008,
during the counseling phase. The Agency notes Complainant’s failure to raise other issues is
bolstered by the letter sent to Complainant’s counsel on September 2, 2011, identifying the
sole issue raised by Complainant concerned her OWCP claim regarding being required to use
the shotgun in June 2008. In addition, t he Agency argues that contrary to Complainant’s
assertions, claims (1) and (3) – (8) are not like or related to the issue raised in counseling.
Moreover, the Agency argues that claim (2) was properly dismissed as untimely. Specifically,
the Agency notes that Complainant states she did not contact an EEO Counselor until she had
been notified that her OWCP claim had been accepted because she did not have confirmation
that her injuries were related to firing a gun. The Agency argues that the determination of the
Department of Labor whether to accept her claim had no impact on Complainant’s ability to
file her complaint.
Additionally, the Agency states that issues (1) and (3) – (8) could have been dismissed for
failure to contact an EEO Counselor in a timely manner. The Agency notes that issue (1) concerned medical care from 2005. The Agency notes that issue (3) alleged that
Complainant’s supervisor delayed submission of her OWCP form. The Agency notes
Complainant’s last day working in the office full -time was on August 27, 2008. The Agency
argues that Complainant knew or should have known the form had been delayed within a few
months of providing it to her supervisor, which it states would have been more than two years
prior to her contact with an EEO Counselor. The Agency also notes that issues (4) – (8) must
have occurred prior to August 27, 2008, which was Complainant’s last day working full time in the office. The Agency notes Complainant did not initiate EEO Counselor contact until June 13, 2011, which was beyond the 45- day limitation period.
ANALYSIS AND FINDINGS
The regulation set forth at 29 C.F.R. § 1614.107(a)(2) states, in pertinent part, that an agency shall dismiss a complaint which raises a matter that has not been brought to the attention of an
EEO Counselor, and is not like or related to a matter on which the complainant has received
couns eling. A later claim or complaint is “like or related” to the original complaint if the later
claim or complaint adds to or clarifies the original complaint and could have reasonably been
expected to grow out of the original complaint during the investigat ion. See Scher v. U.S.
Postal Serv. , EEOC Request No. 05940702 (May 30, 1995); Calhoun v. U.S. Postal Serv. ,
EEOC Request No. 05891068 (Mar. 8, 1990).
EEOC Regulation 29 C.F.R. §1614.105(a)(1) provides that an aggrieved person must initiate
contact with a n EEO Counselor within 45 days of the date of the matter alleged to be
discriminatory or, in the case of a personnel action, within 45 days of the effective date of the
action. EOC Regulation 29 C.F.R. §1614.105(a)(2) allows the agency or the Commission t o
extend the time limit if the complainant can establish that complainant was not aware of the time limit, that complainant did not know and reasonably should not have known that the
discriminatory matter or personnel action occurred, that despite due dili gence complainant was
prevented by circumstances beyond (his or her) control from contacting the EEO Counselor
within the time limit, or for other reasons considered sufficient by the agency or Commission.
We note that a review of the record reveals no ev idence that the hostile work environment
claim or claims (1) or (3) – (8) were brought to the attent ion of the EEO Counselor. Nor do
we find that the matter s raised in claims (1) or (3) – (8) like or related to a matter that was
raised during counseling. Therefore, we find that the Ag ency properly dismissed claims (1)
and (3) – (8).
In addition, we note that even if claims (1) and (3) – (8) were raised during EEO Counseling,
we find those claims, as well as claim (2), were not timely raised with an EEO C ounselor. We
note that on appeal, Complainant acknowledges that being forced to f ire the shotgun on June
13, 2008, was the most recent form of harassment she experienced. Thus, although the latest alleged discriminatory incident occurred on June 13, 2008, we note Complainant did not
initiate EEO counselor contact until June 13, 2011, which is beyond the applicable limitations
period. On appeal, Complainant has presented no persuasive arguments or evidence
warranting an extension of the time limit for ini tiating EEO Counselor contact.
Furthermore, we note that even if claim (3) was timely raised with a n EEO Counselor, it
would still be dismissed for failure to state a claim. The Commission has previously held that,
without more, claims concerning delays in submitting paperwork to OWCP, or submitting
incomplete or faulty paperwork, constitute a collateral attack on the OWCP process and not a
claim of discrimination. See Schneider v. U.S. Postal Service , 05A01065 (August 15, 2002).
These concerns are more properly addressed within the OWCP adjudicatory process.
CONCLUSION
Accordingly, the Agency’s final decision is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION
(M0610)
The Commission may, in its discretion, reconsider the decision in this c ase if the Complainant
or the Agency submits a written request containing arguments or evidence which tend to
establish that:
1. The appellate decision involved a clearly erroneous interpretation of material fact or law; or
2. The appellate decision will have a substantial impact on the policies, practices, or operations of the Agency.
Requests to reconsider, with supporting statement or brief, must be filed with the Office of Federal Operations (OFO)
within thirty (30) calendar days of receipt of this decision 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 r esult 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 Dis trict 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 req uest 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 ser vices 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. Hadde n, Director
Office of Federal Operations
April 25 , 2013
Date | [
"Scher v. U.S. Postal Serv., EEOC Request No. 05940702 (May 30, 1995)",
"Calhoun v. U.S. Postal Serv., EEOC Request No. 05891068 (Mar. 8, 1990)",
"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"
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148 | https://www.eeoc.gov/sites/default/files/migrated_files/decisions/01a00517.txt | 01a00517.txt | TXT | text/plain | 14,087 | August 24, 1998 | Appeal Number: s
Background:
The record reveals that during the relevant time, complainant was employed
as a Letter Carrier, at the agency's Tomball Post Office, Houston,
Texas facility. Believing he was a victim of discrimination, complainant
sought EEO counseling and subsequently filed two formal complaints on
August 24, 1998. In his first complaint (Agency No. 4G-770-0666-98),
complainant alleged that he was discriminated against on the basis of
reprisal (prior EEO activity), when, on June 12, 1998, he was denied the
opportunity to meet with his EEO Representative on the clock and was
subsequently charged annual leave. In his second complaint (Agency
No. 4G-770-0660-98), complainant alleged he was discriminated against
on the basis of reprisal when, on July 12, 1998, he was denied the
opportunity to see an EEO Representative on the clock, and his scheduled
appointment with his representative was canceled.
At the conclusion of the investigations, 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 on his first complaint, but failed to request a
hearing for his second complaint.
The pertinent facts of the complaints are as follows: complainant has
engaged in prior EEO activity of which agency officials were aware.
Sometime in June 1998, complainant's Acting Supervisor approved
complainant to travel and meet with his EEO representative at another
postal facility. The Acting Supervisor agreed that on June 12, 1998,
complainant could be on official time for approximately 3-4 hours.
When the Acting Officer in Charge (OIC) learned about the arrangement,
he contacted the EEO Office in order to learn the proper procedures
for requesting official time. The EEO Specialist informed the Acting
OIC that complainant was entitled to 45 minutes of official telephone
time on the clock. Apparently, complainant went to the appointment as
scheduled, and used annual leave. The record reveals, however, that
complainant was eventually reimbursed for the annual leave used to meet
with his EEO representative.
On July 2, 1998, complainant scheduled another appointment to meet with
his EEO Representative. On that day, the Station Manager informed
complainant that he could have 40 minutes of telephone time with his
EEO representative. Complainant canceled his appointment and did not
discuss his EEO matter with his representative over the telephone.
The Station Manager testified that complainant refused to discuss the
EEO matter with his EEO representative over the telephone because he
did not trust the phones.
Complainant requested a hearing before an EEOC AJ regarding his
first complaint. The AJ found no material facts were in dispute,
and issued a recommended decision without a hearing. Therein, she
found complainant and his then supervisor violated proper procedures
when complainant was approved to travel 3-4 hours on the clock to meet
with his EEO Representative. The AJ found complainant failed to prove
the agency's reason for its action was a pretext for discrimination.
On September 23, 1999, the agency issued a final decision adopting the
AJ's recommended decision.
Complainant did not request a hearing on his second complaint,
and on October 13, 1999, the agency issued a final decision finding
no discrimination. Therein, the agency found complainant failed to
establish a prima facie case of reprisal and failed to prove that the
agency's reasons for its actions were a pretext for discrimination.
The instant appeals followed. Complainant makes no new contentions on
appeal.
Legal Analysis:
The Commission consolidates the appeals pursuant to 64 Fed. Reg. 37,644,
37,661 (1999)(to be codified at 29 C.F.R. § 1614.606).
BACKGROUND
The record reveals that during the relevant time, complainant was employed
as a Letter Carrier, at the agency's Tomball Post Office, Houston,
Texas facility. Believing he was a victim of discrimination, complainant
sought EEO counseling and subsequently filed two formal complaints on
August 24, 1998. In his first complaint (Agency No. 4G-770-0666-98),
complainant alleged that he was discriminated against on the basis of
reprisal (prior EEO activity), when, on June 12, 1998, he was denied the
opportunity to meet with his EEO Representative on the clock and was
subsequently charged annual leave. In his second complaint (Agency
No. 4G-770-0660-98), complainant alleged he was discriminated against
on the basis of reprisal when, on July 12, 1998, he was denied the
opportunity to see an EEO Representative on the clock, and his scheduled
appointment with his representative was canceled.
At the | Gregory Lewis, )
Complainant, )
) Appeal Nos. 01A00484
v. ) 01A00517
) Agency No. 4G-770-0660-98
William J. Henderson, ) 4G-770-0666-98
Postmaster General, )
United States Postal Service, )
(S.E./S.W Areas), )
Agency. )
____________________________________)
DECISION
Complainant timely initiated an appeal from two final agency decisions
(FAD) 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.<1> The appeals are accepted pursuant to 64
Fed. Reg. 37,644, 37,659 (1999)(to be codified at 29 C.F.R. § 1614.405).
The Commission consolidates the appeals pursuant to 64 Fed. Reg. 37,644,
37,661 (1999)(to be codified at 29 C.F.R. § 1614.606).
BACKGROUND
The record reveals that during the relevant time, complainant was employed
as a Letter Carrier, at the agency's Tomball Post Office, Houston,
Texas facility. Believing he was a victim of discrimination, complainant
sought EEO counseling and subsequently filed two formal complaints on
August 24, 1998. In his first complaint (Agency No. 4G-770-0666-98),
complainant alleged that he was discriminated against on the basis of
reprisal (prior EEO activity), when, on June 12, 1998, he was denied the
opportunity to meet with his EEO Representative on the clock and was
subsequently charged annual leave. In his second complaint (Agency
No. 4G-770-0660-98), complainant alleged he was discriminated against
on the basis of reprisal when, on July 12, 1998, he was denied the
opportunity to see an EEO Representative on the clock, and his scheduled
appointment with his representative was canceled.
At the conclusion of the investigations, 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 on his first complaint, but failed to request a
hearing for his second complaint.
The pertinent facts of the complaints are as follows: complainant has
engaged in prior EEO activity of which agency officials were aware.
Sometime in June 1998, complainant's Acting Supervisor approved
complainant to travel and meet with his EEO representative at another
postal facility. The Acting Supervisor agreed that on June 12, 1998,
complainant could be on official time for approximately 3-4 hours.
When the Acting Officer in Charge (OIC) learned about the arrangement,
he contacted the EEO Office in order to learn the proper procedures
for requesting official time. The EEO Specialist informed the Acting
OIC that complainant was entitled to 45 minutes of official telephone
time on the clock. Apparently, complainant went to the appointment as
scheduled, and used annual leave. The record reveals, however, that
complainant was eventually reimbursed for the annual leave used to meet
with his EEO representative.
On July 2, 1998, complainant scheduled another appointment to meet with
his EEO Representative. On that day, the Station Manager informed
complainant that he could have 40 minutes of telephone time with his
EEO representative. Complainant canceled his appointment and did not
discuss his EEO matter with his representative over the telephone.
The Station Manager testified that complainant refused to discuss the
EEO matter with his EEO representative over the telephone because he
did not trust the phones.
Complainant requested a hearing before an EEOC AJ regarding his
first complaint. The AJ found no material facts were in dispute,
and issued a recommended decision without a hearing. Therein, she
found complainant and his then supervisor violated proper procedures
when complainant was approved to travel 3-4 hours on the clock to meet
with his EEO Representative. The AJ found complainant failed to prove
the agency's reason for its action was a pretext for discrimination.
On September 23, 1999, the agency issued a final decision adopting the
AJ's recommended decision.
Complainant did not request a hearing on his second complaint,
and on October 13, 1999, the agency issued a final decision finding
no discrimination. Therein, the agency found complainant failed to
establish a prima facie case of reprisal and failed to prove that the
agency's reasons for its actions were a pretext for discrimination.
The instant appeals followed. Complainant makes no new contentions on
appeal.
ANALYSIS AND FINDINGS
Complainants are entitled to reasonable official time to process their EEO
complaints. What is reasonable depends on the individual circumstances of
each complaint, however, the regulation does not envision large amounts
of official time for preparation purposes. See 29 C.F.R. § 1614.605;
EEOC Management Directive (MD) 110, as revised, November 9, 1999.
The Commission finds that the agency erred when it accepted the
complaints as claims of employment discrimination. The appropriate
analysis is whether appellant was entitled to official time under 29
C.F.R. § 1614.605(b)(2). Edwards v. United States Postal Service,
EEOC Request No. 05950708 (October 31, 1996). Such a violation may be
remedied without a finding of discrimination. Id., citing Kwok v. United
States Postal Service, EEOC Request No.05940368 (December 15, 1994);
and Jones v. United States Postal Service, EEOC Request No. 05860132
(May 26, 1987).; and Saunders v. United States Postal Service, EEOC
Request No. 05870046 (May 27, 1987) and EEOC Request No. 05860155
(October 8, 1986). Thus, it is not relevant whether the agency's denial
of official time was motivated by discrimination based on race, color,
sex, age or retaliation for the complainant's prior EEO activity. Id.
Despite the agency's error in this regard, we find the agency's decisions
should be affirmed because complainant failed to establish he was denied
a reasonable amount of official time in which to prepare his complaints.
In his first complaint, complainant was eventually reimbursed for the
annual leave he used when he was told he could not have official time
to travel and meet with his EEO Representative for 3-4 hours. As such,
we find complainant was not denied official time for his appointment in
June 1998.
As to his second complaint, we also find that the agency did not deny
complainant a reasonable amount of official time. Reasonable is defined
as whatever is appropriate, under the particular circumstances of the
complaint, in order to allow a complete presentation of the relevant
information associated with the complaint and to respond to agency
requests for information. The actual number of hours to which complainant
and his or her representative are entitled will vary, depending on the
nature and complexity of the complaint and considering the mission of the
agency and the agency's need to have its employees available to perform
their normal duties on a regular basis. EEOC Management Directive (MD)
110, as revised, November 9, 1999 at 6-15.
In his second complaint, we find complainant was permitted to speak
with his representative over the phone, but chose not to do so.
Although complainant argues he was denied the opportunity to speak with
his EEO Representative in person, we find no evidence of such. Rather,
complainant was denied to travel to his Representative's facility on the
clock, due to the June 1998 incident. Complainant has not established
that his claim was so complex that he was unable to discuss the matter
with his representative over the phone. The Commission considers it
reasonable for agencies to expect their employees to spend most of
their time doing work for which they are employed. EEOC Management
Directive (MD) 110, as revised, November 9, 1999 at 6-16. To that end,
we find, based upon the facts in this case, that the agency did not
act unreasonably when it informed complainant that he could speak with
his EEO Representative over the phone. We also note complainant was
capable of making alternative arrangements to meet in person with his
EEO Representative should he have desired.<2>
CONCLUSION
Therefore, after a careful review of the record, arguments and evidence
not specifically addressed in this decision, we AFFIRM the FAD.
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).
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:
May 16, 2000
Date
Carlton
M.
Hadden,
Acting
Director
Office of Federal Operations
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.
2We note for the record, however, that the agency's policy regarding
official time at the EEO Counseling stage is contained in the record.
Therein, the agency states that a complainant may have 40 minutes on
the clock to complete the EEO Counselor's form. If complainant elects
a representative at a different facility, a complainant is entitled to
40 minutes of telephone time to complete the form. We advise the agency
that the reasonableness of official time is determined on the facts of
individual cases. In some cases, 40 minutes of telephone time may not
be considered reasonable in order to present the relevant information
associated with a complaint. We also note that in some cases, it
may be necessary for a complainant to meet his or her representative
in person. However, the facts in this case do not present such
circumstances.
| [
"Edwards v. United States Postal Service, EEOC Request No. 05950708 (October 31, 1996)",
"Jones v. United States Postal Service, EEOC Request No. 05860132 (May 26, 1987)",
"Saunders v. United States Postal Service, EEOC Request No. 05870046 (May 27, 1987)",
"29 C.F.R. § 1614.405",
"29 C.F.R. § 1614.606",
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-0.02... | |
149 | https://www.eeoc.gov/sites/default/files/migrated_files/decisions/01a00484.txt | 01a00484.txt | TXT | text/plain | 14,087 | August 24, 1998 | Appeal Number: s
Background:
The record reveals that during the relevant time, complainant was employed
as a Letter Carrier, at the agency's Tomball Post Office, Houston,
Texas facility. Believing he was a victim of discrimination, complainant
sought EEO counseling and subsequently filed two formal complaints on
August 24, 1998. In his first complaint (Agency No. 4G-770-0666-98),
complainant alleged that he was discriminated against on the basis of
reprisal (prior EEO activity), when, on June 12, 1998, he was denied the
opportunity to meet with his EEO Representative on the clock and was
subsequently charged annual leave. In his second complaint (Agency
No. 4G-770-0660-98), complainant alleged he was discriminated against
on the basis of reprisal when, on July 12, 1998, he was denied the
opportunity to see an EEO Representative on the clock, and his scheduled
appointment with his representative was canceled.
At the conclusion of the investigations, 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 on his first complaint, but failed to request a
hearing for his second complaint.
The pertinent facts of the complaints are as follows: complainant has
engaged in prior EEO activity of which agency officials were aware.
Sometime in June 1998, complainant's Acting Supervisor approved
complainant to travel and meet with his EEO representative at another
postal facility. The Acting Supervisor agreed that on June 12, 1998,
complainant could be on official time for approximately 3-4 hours.
When the Acting Officer in Charge (OIC) learned about the arrangement,
he contacted the EEO Office in order to learn the proper procedures
for requesting official time. The EEO Specialist informed the Acting
OIC that complainant was entitled to 45 minutes of official telephone
time on the clock. Apparently, complainant went to the appointment as
scheduled, and used annual leave. The record reveals, however, that
complainant was eventually reimbursed for the annual leave used to meet
with his EEO representative.
On July 2, 1998, complainant scheduled another appointment to meet with
his EEO Representative. On that day, the Station Manager informed
complainant that he could have 40 minutes of telephone time with his
EEO representative. Complainant canceled his appointment and did not
discuss his EEO matter with his representative over the telephone.
The Station Manager testified that complainant refused to discuss the
EEO matter with his EEO representative over the telephone because he
did not trust the phones.
Complainant requested a hearing before an EEOC AJ regarding his
first complaint. The AJ found no material facts were in dispute,
and issued a recommended decision without a hearing. Therein, she
found complainant and his then supervisor violated proper procedures
when complainant was approved to travel 3-4 hours on the clock to meet
with his EEO Representative. The AJ found complainant failed to prove
the agency's reason for its action was a pretext for discrimination.
On September 23, 1999, the agency issued a final decision adopting the
AJ's recommended decision.
Complainant did not request a hearing on his second complaint,
and on October 13, 1999, the agency issued a final decision finding
no discrimination. Therein, the agency found complainant failed to
establish a prima facie case of reprisal and failed to prove that the
agency's reasons for its actions were a pretext for discrimination.
The instant appeals followed. Complainant makes no new contentions on
appeal.
Legal Analysis:
The Commission consolidates the appeals pursuant to 64 Fed. Reg. 37,644,
37,661 (1999)(to be codified at 29 C.F.R. § 1614.606).
BACKGROUND
The record reveals that during the relevant time, complainant was employed
as a Letter Carrier, at the agency's Tomball Post Office, Houston,
Texas facility. Believing he was a victim of discrimination, complainant
sought EEO counseling and subsequently filed two formal complaints on
August 24, 1998. In his first complaint (Agency No. 4G-770-0666-98),
complainant alleged that he was discriminated against on the basis of
reprisal (prior EEO activity), when, on June 12, 1998, he was denied the
opportunity to meet with his EEO Representative on the clock and was
subsequently charged annual leave. In his second complaint (Agency
No. 4G-770-0660-98), complainant alleged he was discriminated against
on the basis of reprisal when, on July 12, 1998, he was denied the
opportunity to see an EEO Representative on the clock, and his scheduled
appointment with his representative was canceled.
At the | Gregory Lewis, )
Complainant, )
) Appeal Nos. 01A00484
v. ) 01A00517
) Agency No. 4G-770-0660-98
William J. Henderson, ) 4G-770-0666-98
Postmaster General, )
United States Postal Service, )
(S.E./S.W Areas), )
Agency. )
____________________________________)
DECISION
Complainant timely initiated an appeal from two final agency decisions
(FAD) 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.<1> The appeals are accepted pursuant to 64
Fed. Reg. 37,644, 37,659 (1999)(to be codified at 29 C.F.R. § 1614.405).
The Commission consolidates the appeals pursuant to 64 Fed. Reg. 37,644,
37,661 (1999)(to be codified at 29 C.F.R. § 1614.606).
BACKGROUND
The record reveals that during the relevant time, complainant was employed
as a Letter Carrier, at the agency's Tomball Post Office, Houston,
Texas facility. Believing he was a victim of discrimination, complainant
sought EEO counseling and subsequently filed two formal complaints on
August 24, 1998. In his first complaint (Agency No. 4G-770-0666-98),
complainant alleged that he was discriminated against on the basis of
reprisal (prior EEO activity), when, on June 12, 1998, he was denied the
opportunity to meet with his EEO Representative on the clock and was
subsequently charged annual leave. In his second complaint (Agency
No. 4G-770-0660-98), complainant alleged he was discriminated against
on the basis of reprisal when, on July 12, 1998, he was denied the
opportunity to see an EEO Representative on the clock, and his scheduled
appointment with his representative was canceled.
At the conclusion of the investigations, 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 on his first complaint, but failed to request a
hearing for his second complaint.
The pertinent facts of the complaints are as follows: complainant has
engaged in prior EEO activity of which agency officials were aware.
Sometime in June 1998, complainant's Acting Supervisor approved
complainant to travel and meet with his EEO representative at another
postal facility. The Acting Supervisor agreed that on June 12, 1998,
complainant could be on official time for approximately 3-4 hours.
When the Acting Officer in Charge (OIC) learned about the arrangement,
he contacted the EEO Office in order to learn the proper procedures
for requesting official time. The EEO Specialist informed the Acting
OIC that complainant was entitled to 45 minutes of official telephone
time on the clock. Apparently, complainant went to the appointment as
scheduled, and used annual leave. The record reveals, however, that
complainant was eventually reimbursed for the annual leave used to meet
with his EEO representative.
On July 2, 1998, complainant scheduled another appointment to meet with
his EEO Representative. On that day, the Station Manager informed
complainant that he could have 40 minutes of telephone time with his
EEO representative. Complainant canceled his appointment and did not
discuss his EEO matter with his representative over the telephone.
The Station Manager testified that complainant refused to discuss the
EEO matter with his EEO representative over the telephone because he
did not trust the phones.
Complainant requested a hearing before an EEOC AJ regarding his
first complaint. The AJ found no material facts were in dispute,
and issued a recommended decision without a hearing. Therein, she
found complainant and his then supervisor violated proper procedures
when complainant was approved to travel 3-4 hours on the clock to meet
with his EEO Representative. The AJ found complainant failed to prove
the agency's reason for its action was a pretext for discrimination.
On September 23, 1999, the agency issued a final decision adopting the
AJ's recommended decision.
Complainant did not request a hearing on his second complaint,
and on October 13, 1999, the agency issued a final decision finding
no discrimination. Therein, the agency found complainant failed to
establish a prima facie case of reprisal and failed to prove that the
agency's reasons for its actions were a pretext for discrimination.
The instant appeals followed. Complainant makes no new contentions on
appeal.
ANALYSIS AND FINDINGS
Complainants are entitled to reasonable official time to process their EEO
complaints. What is reasonable depends on the individual circumstances of
each complaint, however, the regulation does not envision large amounts
of official time for preparation purposes. See 29 C.F.R. § 1614.605;
EEOC Management Directive (MD) 110, as revised, November 9, 1999.
The Commission finds that the agency erred when it accepted the
complaints as claims of employment discrimination. The appropriate
analysis is whether appellant was entitled to official time under 29
C.F.R. § 1614.605(b)(2). Edwards v. United States Postal Service,
EEOC Request No. 05950708 (October 31, 1996). Such a violation may be
remedied without a finding of discrimination. Id., citing Kwok v. United
States Postal Service, EEOC Request No.05940368 (December 15, 1994);
and Jones v. United States Postal Service, EEOC Request No. 05860132
(May 26, 1987).; and Saunders v. United States Postal Service, EEOC
Request No. 05870046 (May 27, 1987) and EEOC Request No. 05860155
(October 8, 1986). Thus, it is not relevant whether the agency's denial
of official time was motivated by discrimination based on race, color,
sex, age or retaliation for the complainant's prior EEO activity. Id.
Despite the agency's error in this regard, we find the agency's decisions
should be affirmed because complainant failed to establish he was denied
a reasonable amount of official time in which to prepare his complaints.
In his first complaint, complainant was eventually reimbursed for the
annual leave he used when he was told he could not have official time
to travel and meet with his EEO Representative for 3-4 hours. As such,
we find complainant was not denied official time for his appointment in
June 1998.
As to his second complaint, we also find that the agency did not deny
complainant a reasonable amount of official time. Reasonable is defined
as whatever is appropriate, under the particular circumstances of the
complaint, in order to allow a complete presentation of the relevant
information associated with the complaint and to respond to agency
requests for information. The actual number of hours to which complainant
and his or her representative are entitled will vary, depending on the
nature and complexity of the complaint and considering the mission of the
agency and the agency's need to have its employees available to perform
their normal duties on a regular basis. EEOC Management Directive (MD)
110, as revised, November 9, 1999 at 6-15.
In his second complaint, we find complainant was permitted to speak
with his representative over the phone, but chose not to do so.
Although complainant argues he was denied the opportunity to speak with
his EEO Representative in person, we find no evidence of such. Rather,
complainant was denied to travel to his Representative's facility on the
clock, due to the June 1998 incident. Complainant has not established
that his claim was so complex that he was unable to discuss the matter
with his representative over the phone. The Commission considers it
reasonable for agencies to expect their employees to spend most of
their time doing work for which they are employed. EEOC Management
Directive (MD) 110, as revised, November 9, 1999 at 6-16. To that end,
we find, based upon the facts in this case, that the agency did not
act unreasonably when it informed complainant that he could speak with
his EEO Representative over the phone. We also note complainant was
capable of making alternative arrangements to meet in person with his
EEO Representative should he have desired.<2>
CONCLUSION
Therefore, after a careful review of the record, arguments and evidence
not specifically addressed in this decision, we AFFIRM the FAD.
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).
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:
May 16, 2000
Date
Carlton
M.
Hadden,
Acting
Director
Office of Federal Operations
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.
2We note for the record, however, that the agency's policy regarding
official time at the EEO Counseling stage is contained in the record.
Therein, the agency states that a complainant may have 40 minutes on
the clock to complete the EEO Counselor's form. If complainant elects
a representative at a different facility, a complainant is entitled to
40 minutes of telephone time to complete the form. We advise the agency
that the reasonableness of official time is determined on the facts of
individual cases. In some cases, 40 minutes of telephone time may not
be considered reasonable in order to present the relevant information
associated with a complaint. We also note that in some cases, it
may be necessary for a complainant to meet his or her representative
in person. However, the facts in this case do not present such
circumstances.
| [
"Edwards v. United States Postal Service, EEOC Request No. 05950708 (October 31, 1996)",
"Jones v. United States Postal Service, EEOC Request No. 05860132 (May 26, 1987)",
"Saunders v. United States Postal Service, EEOC Request No. 05870046 (May 27, 1987)",
"29 C.F.R. § 1614.405",
"29 C.F.R. § 1614.606",
... | [
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0.03248224034905434,
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0.00490195257589221,
0.02695530280470848,
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-0.02... | |
150 | https://www.eeoc.gov/sites/default/files/migrated_files/decisions/01980724.txt | 01980724.txt | TXT | text/plain | 12,416 | November 10, 1998 | Appeal Number: 01980724
Case Facts:
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. The final agency decision was issued on
July 16, 1997. The appeal was received by the Commission on November
4, 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.
The record reflects that appellant was a Letter Carrier at the agency's
Guam Main Facility in Barrigada, Guam. On December 22, 1995, appellant
was terminated during his probationary period of employment.
On April 9, 1996, appellant filed a formal complaint, alleging that he
was the victim of unlawful employment discrimination on the basis of
race, when he was terminated. On July 23, 1996, the agency issued a
final decision, dismissing appellant's complaint for failure to timely
contact an EEO Counselor. The agency found that appellant initiated
contact with an EEO Counselor on February 26, 1996, more than forty-five
days after his termination on December 22, 1995.
On appeal, appellant argued that the agency incorrectly determined
that his initial EEO Counselor contact occurred on February 26, 1996.
Appellant enclosed copies of telephone bills for the period January
10, 1996, through March 12, 1996. Appellant argued that these bills
"clearly indicate that [he] filed the complaint on January 10, 1996,"
since two calls to the same number and the same destination in Puuloa,
Hawaii were made on that date. The phone bill copies also contained
six entries to a separate number in Puuloa, Hawaii, on February 6, 9,
13, 21, and 27, 1996, with the handwritten notation "EEO Hawaii."
The Commission found that it was unable to ascertain from the record
whether appellant's initial EEO contact occurred on January 10, 1996,
as he alleged on appeal, or on February 26, 1996, as determined by
the agency. The agency's decision to dismiss appellant's complaint
was vacated, and appellant's complaint was remanded to the agency. The
Commission ordered the agency to conduct a supplemental investigation to
determine appellant's initial EEO Counselor contact date. The Commission
specifically ordered the agency to indicate whether the telephone numbers
identified by appellant belong to the agency's EEO office; to obtain
statements from employees of the EEO Office indicating whether they were
contacted by appellant; and to obtain any other relevant information
regarding appellant's EEO contact. The agency was also ordered to
issue a final agency decision or notify appellant that the agency was
processing her complaint. Elomina v. USPS, EEOC Appeal No. 01966177
(June 23, 1997).
On July 16, 1997, the agency issued a final decision that is the
subject of the instant appeal. Therein, the agency again dismissed
appellant's complaint for failure to initiate timely EEO Counselor
contact. The agency stated that a supplemental investigation had
been conducted, in accordance with the Commission's Order of June 23,
1997. Relying upon an affidavit dated June 30, 1996, and prepared by
an agency EEO Counselor/Investigator, the agency found that the EEO
Counselor/Investigator stated that during the period January 10, 1996,
through March 12, 1996, she was assigned to the agency EEO Office in
Honolulu, Hawaii; and that her telephone number has, since 1993, been
the same. The agency further found that appellant called a different
number; and that this number used to be the number for the "telephone
center" in Honolulu, Hawaii.<2> Moreover, the agency found that if
appellant had telephoned the "telephone center," his call would have
been forwarded to the extension of the EEO Counselor/Investigator, once
the "telephone center" was aware of the nature of appellant's call.
Finally, the agency found that records disclosed that no calls were
forwarded to the EEO Counselor/Investigator from the "telephone center;"
that if any telephone calls had been forwarded to the EEO Counselor
Investigator, he would have referred appellant to the phone number
for the Northern California EEO Processing Center; and that the record
disclosed that appellant's call was not forwarded to the office of the
EEO Counselor/Investigator.
Legal Analysis:
the Commission on November
4, 1997.
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. The record reflects that appellant was a Letter Carrier at the agency's Guam Main Facility in Barrigada, Guam. On December 22, 1995, appellant was terminated during his probationary period of employment. On April 9, 1996, appellant filed a formal complaint, alleging that he was the victim of unlawful employment discrimination on the basis of race, when he was terminated. On July 23, 1996, the agency issued a final decision, dismissing appellant's complaint for failure to timely contact an EEO Counselor. The agency found that appellant initiated contact with an EEO Counselor on February 26, 1996, more than forty-five days after his termination on December 22, 1995. On appeal, appellant argued that the agency incorrectly determined that his initial EEO Counselor contact occurred on February 26, 1996. Appellant enclosed copies of telephone bills for the period January 10, 1996, through March 12, 1996. Appellant argued that these bills "clearly indicate that [he] filed the complaint on January 10, 1996," since two calls to the same number and the same destination in Puuloa, Hawaii were made on that date. The phone bill copies also contained six entries to a separate number in Puuloa, Hawaii, on February 6, 9, 13, 21, and 27, 1996, with the handwritten notation "EEO Hawaii." The Commission found that it was unable to ascertain from the record whether appellant's initial EEO contact occurred on January 10, 1996, as he alleged on appeal, or on February 26, 1996, as determined by the agency. The agency's decision to dismiss appellant's complaint was vacated, and appellant's complaint was remanded to the agency. The Commission ordered the agency to conduct a supplemental investigation to determine appellant's initial EEO Counselor contact date. The Commission specifically ordered the agency to indicate whether the telephone numbers identified by appellant belong to the agency's EEO office; to obtain statements from employees of the EEO Office indicating whether they were contacted by appellant; and to obtain any other relevant information regarding appellant's EEO contact. The agency was also ordered to issue a final agency decision or notify appellant that the agency was processing her complaint. Elomina v. USPS, EEOC Appeal No. 01966177 (June 23, 1997). On July 16, 1997, the agency issued a final decision that is the subject of the instant appeal. Therein, the agency again dismissed appellant's complaint for failure to initiate timely EEO Counselor contact. The agency stated that a supplemental investigation had been conducted, in accordance with the Commission's Order of June 23, 1997. Relying upon an affidavit dated June 30, 1996, and prepared by an agency EEO Counselor/Investigator, the agency found that the EEO Counselor/Investigator stated that during the period January 10, 1996, through March 12, 1996, she was assigned to the agency EEO Office in Honolulu, Hawaii; and that her telephone number has, since 1993, been the same. The agency further found that appellant called a different number; and that this number used to be the number for the "telephone center" in Honolulu, Hawaii.<2> Moreover, the agency found that if appellant had telephoned the "telephone center," his call would have been forwarded to the extension of the EEO Counselor/Investigator, once the "telephone center" was aware of the nature of appellant's call. Finally, the agency found that records disclosed that no calls were forwarded to the EEO Counselor/Investigator from the "telephone center;" that if any telephone calls had been forwarded to the EEO Counselor Investigator, he would have referred appellant to the phone number for the Northern California EEO Processing Center; and that the record disclosed that appellant's call was not forwarded to the office of the EEO Counselor/Investigator. 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 the agency properly found that appellant's initial EEO Counselor contact was untimely. Appellant's complaint addresses his termination from agency employment on December 22, 1995. The record reflects that, within the forty-five day period that followed his December 22, 1995 termination, appellant made two calls to an agency telephone number at an agency "telephone center" in Hawaii, on January 10, 1996. However, the record contains the testimony of an agency EEO official who stated that the two calls made to an agency "telephone center" in Honolulu would have been forwarded to an EEO Counselor once the "telephone center" had been aware of the nature of appellant's calls. The EEO official stated that appellant's calls were not forwarded to the office of EEO Counselor in January 1996. The record, moreover, reflects that appellant made numerous telephone calls to the agency following the expiration of the forty-five day limitation period, in February 1996. Appellant has not, however, provided any explanation for the delay between the time he called the agency "telephone center" in January 1996, and his subsequent telephone calls to the agency in February 1996. Appellant failed to present adequate justification pursuant to 29 C.F.R. §1614.105(a)(2), for extending the limitation period beyond forty-five days. Accordingly, the agency's decision to dismiss appellant's complaint for failure to initiate contact with an EEO Counselor in a timely fashion was proper and is AFFIRMED. | Ambert A. Elomina v. United States Postal Service
01980724
November 10, 1998
Ambert A. Elomina, )
Appellant, )
)
v. ) Appeal No. 01980724
) Agency No. 4F-967-1018-96
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
)
DECISION
Appellant filed an appeal with this Commission from a final decision of
the agency concerning his complaint of unlawful employment discrimination,
in violation of Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. §2000e et seq. The final agency decision was issued on
July 16, 1997. The appeal was received by the Commission on November
4, 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.
The record reflects that appellant was a Letter Carrier at the agency's
Guam Main Facility in Barrigada, Guam. On December 22, 1995, appellant
was terminated during his probationary period of employment.
On April 9, 1996, appellant filed a formal complaint, alleging that he
was the victim of unlawful employment discrimination on the basis of
race, when he was terminated. On July 23, 1996, the agency issued a
final decision, dismissing appellant's complaint for failure to timely
contact an EEO Counselor. The agency found that appellant initiated
contact with an EEO Counselor on February 26, 1996, more than forty-five
days after his termination on December 22, 1995.
On appeal, appellant argued that the agency incorrectly determined
that his initial EEO Counselor contact occurred on February 26, 1996.
Appellant enclosed copies of telephone bills for the period January
10, 1996, through March 12, 1996. Appellant argued that these bills
"clearly indicate that [he] filed the complaint on January 10, 1996,"
since two calls to the same number and the same destination in Puuloa,
Hawaii were made on that date. The phone bill copies also contained
six entries to a separate number in Puuloa, Hawaii, on February 6, 9,
13, 21, and 27, 1996, with the handwritten notation "EEO Hawaii."
The Commission found that it was unable to ascertain from the record
whether appellant's initial EEO contact occurred on January 10, 1996,
as he alleged on appeal, or on February 26, 1996, as determined by
the agency. The agency's decision to dismiss appellant's complaint
was vacated, and appellant's complaint was remanded to the agency. The
Commission ordered the agency to conduct a supplemental investigation to
determine appellant's initial EEO Counselor contact date. The Commission
specifically ordered the agency to indicate whether the telephone numbers
identified by appellant belong to the agency's EEO office; to obtain
statements from employees of the EEO Office indicating whether they were
contacted by appellant; and to obtain any other relevant information
regarding appellant's EEO contact. The agency was also ordered to
issue a final agency decision or notify appellant that the agency was
processing her complaint. Elomina v. USPS, EEOC Appeal No. 01966177
(June 23, 1997).
On July 16, 1997, the agency issued a final decision that is the
subject of the instant appeal. Therein, the agency again dismissed
appellant's complaint for failure to initiate timely EEO Counselor
contact. The agency stated that a supplemental investigation had
been conducted, in accordance with the Commission's Order of June 23,
1997. Relying upon an affidavit dated June 30, 1996, and prepared by
an agency EEO Counselor/Investigator, the agency found that the EEO
Counselor/Investigator stated that during the period January 10, 1996,
through March 12, 1996, she was assigned to the agency EEO Office in
Honolulu, Hawaii; and that her telephone number has, since 1993, been
the same. The agency further found that appellant called a different
number; and that this number used to be the number for the "telephone
center" in Honolulu, Hawaii.<2> Moreover, the agency found that if
appellant had telephoned the "telephone center," his call would have
been forwarded to the extension of the EEO Counselor/Investigator, once
the "telephone center" was aware of the nature of appellant's call.
Finally, the agency found that records disclosed that no calls were
forwarded to the EEO Counselor/Investigator from the "telephone center;"
that if any telephone calls had been forwarded to the EEO Counselor
Investigator, he would have referred appellant to the phone number
for the Northern California EEO Processing Center; and that the record
disclosed that appellant's call was not forwarded to the office of the
EEO Counselor/Investigator.
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 the agency properly found that appellant's
initial EEO Counselor contact was untimely. Appellant's complaint
addresses his termination from agency employment on December 22, 1995.
The record reflects that, within the forty-five day period that followed
his December 22, 1995 termination, appellant made two calls to an agency
telephone number at an agency "telephone center" in Hawaii, on January
10, 1996. However, the record contains the testimony of an agency EEO
official who stated that the two calls made to an agency "telephone
center" in Honolulu would have been forwarded to an EEO Counselor once
the "telephone center" had been aware of the nature of appellant's calls.
The EEO official stated that appellant's calls were not forwarded to
the office of EEO Counselor in January 1996. The record, moreover,
reflects that appellant made numerous telephone calls to the agency
following the expiration of the forty-five day limitation period, in
February 1996. Appellant has not, however, provided any explanation
for the delay between the time he called the agency "telephone center"
in January 1996, and his subsequent telephone calls to the agency in
February 1996. Appellant failed to present adequate justification
pursuant to 29 C.F.R. §1614.105(a)(2), for extending the limitation
period beyond forty-five days. Accordingly, the agency's decision to
dismiss appellant's complaint for failure to initiate contact with an
EEO Counselor in a timely fashion was proper and is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. §1614.407. All requests and arguments
must bear proof of postmark and be submitted to the Director, Office of
Federal Operations, Equal Employment Opportunity Commission, P.O. Box
19848, Washington, D.C. 20036. In the absence of a legible postmark,
the request to reconsider shall be deemed filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and any supporting documentation must be submitted with your
request for reconsideration. The Commission will consider requests
for reconsideration filed after the deadline only in very limited
circumstances. See 29 C.F.R. §1614.604(c).
RIGHT TO FILE A CIVIL ACTION (S0993)
It is the position of the Commission that you have the right to file
a civil action in an appropriate United States District Court WITHIN
NINETY (90) CALENDAR DAYS from the date that you receive this decision.
You should be aware, however, that courts in some jurisdictions have
interpreted the Civil Rights Act of 1991 in a manner suggesting that
a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the
date that you receive this decision. To ensure that your civil action
is considered timely, you are advised to file it WITHIN THIRTY (30)
CALENDAR DAYS from the date that you receive this decision or to consult
an attorney concerning the applicable time period in the jurisdiction
in which your action would be filed. 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:
Nov. 10, 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.
2 In her June 30, 1996 affidavit, the EEO Counselor/Investigator stated
that the "telephone center" had been "recently" dismantled and that all
telephone calls were thereafter forwarded to Denver, Colorado. | [
"Elomina v. USPS, EEOC Appeal No. 01966177 (June 23, 1997)",
"Ball v. USPS, EEOC Request No. 05880247 (July 6, 1988)"
] | [
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151 | https://www.eeoc.gov/sites/default/files/migrated_files/decisions/01980724.R.txt | 01980724.R.txt | TXT | text/plain | 12,719 | July 16, 1997 | Appeal Number: 01980724
Case Facts:
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. The final agency decision was issued on
July 16, 1997. The appeal was received by the Commission on November
4, 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.
The record reflects that appellant was a Letter Carrier at the agency's
Guam Main Facility in Barrigada, Guam. On December 22, 1995, appellant
was terminated during his probationary period of employment.
On April 9, 1996, appellant filed a formal complaint, alleging that he
was the victim of unlawful employment discrimination on the basis of
race, when he was terminated. On July 23, 1996, the agency issued a
final decision, dismissing appellant's complaint for failure to timely
contact an EEO Counselor. The agency found that appellant initiated
contact with an EEO Counselor on February 26, 1996, more than forty-five
days after his termination on December 22, 1995.
On appeal, appellant argued that the agency incorrectly determined
that his initial EEO Counselor contact occurred on February 26, 1996.
Appellant enclosed copies of telephone bills for the period January
10, 1996, through March 12, 1996. Appellant argued that these bills
"clearly indicate that [he] filed the complaint on January 10, 1996,"
since two calls to the same number and the same destination in Puuloa,
Hawaii were made on that date. The phone bill copies also contained
six entries to a separate number in Puuloa, Hawaii, on February 6, 9,
13, 21, and 27, 1996, with the handwritten notation "EEO Hawaii."
The Commission found that it was unable to ascertain from the record
whether appellant's initial EEO contact occurred on January 10, 1996,
as he alleged on appeal, or on February 26, 1996, as determined by
the agency. The agency's decision to dismiss appellant's complaint
was vacated, and appellant's complaint was remanded to the agency. The
Commission ordered the agency to conduct a supplemental investigation to
determine appellant's initial EEO Counselor contact date. The Commission
specifically ordered the agency to indicate whether the telephone numbers
identified by appellant belong to the agency's EEO office; to obtain
statements from employees of the EEO Office indicating whether they were
contacted by appellant; and to obtain any other relevant information
regarding appellant's EEO contact. The agency was also ordered to
issue a final agency decision or notify appellant that the agency was
processing her complaint. Elomina v. USPS, EEOC Appeal No. 01966177
(June 23, 1997).
On July 16, 1997, the agency issued a final decision that is the
subject of the instant appeal. Therein, the agency again dismissed
appellant's complaint for failure to initiate timely EEO Counselor
contact. The agency stated that a supplemental investigation had
been conducted, in accordance with the Commission's Order of June 23,
1997. Relying upon an affidavit dated June 30, 1996, and prepared by
an agency EEO Counselor/Investigator, the agency found that the EEO
Counselor/Investigator stated that during the period January 10, 1996,
through March 12, 1996, she was assigned to the agency EEO Office in
Honolulu, Hawaii; and that her telephone number has, since 1993, been
the same. The agency further found that appellant called a different
number; and that this number used to be the number for the "telephone
center" in Honolulu, Hawaii.<2> Moreover, the agency found that if
appellant had telephoned the "telephone center," his call would have
been forwarded to the extension of the EEO Counselor/Investigator, once
the "telephone center" was aware of the nature of appellant's call.
Finally, the agency found that records disclosed that no calls were
forwarded to the EEO Counselor/Investigator from the "telephone center;"
that if any telephone calls had been forwarded to the EEO Counselor
Investigator, he would have referred appellant to the phone number
for the Northern California EEO Processing Center; and that the record
disclosed that appellant's call was not forwarded to the office of the
EEO Counselor/Investigator.
Legal Analysis:
the Commission on November
4, 1997.
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. The record reflects that appellant was a Letter Carrier at the agency's Guam Main Facility in Barrigada, Guam. On December 22, 1995, appellant was terminated during his probationary period of employment. On April 9, 1996, appellant filed a formal complaint, alleging that he was the victim of unlawful employment discrimination on the basis of race, when he was terminated. On July 23, 1996, the agency issued a final decision, dismissing appellant's complaint for failure to timely contact an EEO Counselor. The agency found that appellant initiated contact with an EEO Counselor on February 26, 1996, more than forty-five days after his termination on December 22, 1995. On appeal, appellant argued that the agency incorrectly determined that his initial EEO Counselor contact occurred on February 26, 1996. Appellant enclosed copies of telephone bills for the period January 10, 1996, through March 12, 1996. Appellant argued that these bills "clearly indicate that [he] filed the complaint on January 10, 1996," since two calls to the same number and the same destination in Puuloa, Hawaii were made on that date. The phone bill copies also contained six entries to a separate number in Puuloa, Hawaii, on February 6, 9, 13, 21, and 27, 1996, with the handwritten notation "EEO Hawaii." The Commission found that it was unable to ascertain from the record whether appellant's initial EEO contact occurred on January 10, 1996, as he alleged on appeal, or on February 26, 1996, as determined by the agency. The agency's decision to dismiss appellant's complaint was vacated, and appellant's complaint was remanded to the agency. The Commission ordered the agency to conduct a supplemental investigation to determine appellant's initial EEO Counselor contact date. The Commission specifically ordered the agency to indicate whether the telephone numbers identified by appellant belong to the agency's EEO office; to obtain statements from employees of the EEO Office indicating whether they were contacted by appellant; and to obtain any other relevant information regarding appellant's EEO contact. The agency was also ordered to issue a final agency decision or notify appellant that the agency was processing her complaint. Elomina v. USPS, EEOC Appeal No. 01966177 (June 23, 1997). On July 16, 1997, the agency issued a final decision that is the subject of the instant appeal. Therein, the agency again dismissed appellant's complaint for failure to initiate timely EEO Counselor contact. The agency stated that a supplemental investigation had been conducted, in accordance with the Commission's Order of June 23, 1997. Relying upon an affidavit dated June 30, 1996, and prepared by an agency EEO Counselor/Investigator, the agency found that the EEO Counselor/Investigator stated that during the period January 10, 1996, through March 12, 1996, she was assigned to the agency EEO Office in Honolulu, Hawaii; and that her telephone number has, since 1993, been the same. The agency further found that appellant called a different number; and that this number used to be the number for the "telephone center" in Honolulu, Hawaii.<2> Moreover, the agency found that if appellant had telephoned the "telephone center," his call would have been forwarded to the extension of the EEO Counselor/Investigator, once the "telephone center" was aware of the nature of appellant's call. Finally, the agency found that records disclosed that no calls were forwarded to the EEO Counselor/Investigator from the "telephone center;" that if any telephone calls had been forwarded to the EEO Counselor Investigator, he would have referred appellant to the phone number for the Northern California EEO Processing Center; and that the record disclosed that appellant's call was not forwarded to the office of the EEO Counselor/Investigator. 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 the agency properly found that appellant's initial EEO Counselor contact was untimely. Appellant's complaint addresses his termination from agency employment on December 22, 1995. The record reflects that, within the forty-five day period that followed his December 22, 1995 termination, appellant made two calls to an agency telephone number at an agency "telephone center" in Hawaii, on January 10, 1996. However, the record contains the testimony of an agency EEO official who stated that the two calls made to an agency "telephone center" in Honolulu would have been forwarded to an EEO Counselor once the "telephone center" had been aware of the nature of appellant's calls. The EEO official stated that appellant's calls were not forwarded to the office of EEO Counselor in January 1996. The record, moreover, reflects that appellant made numerous telephone calls to the agency following the expiration of the forty-five day limitation period, in February 1996. Appellant has not, however, provided any explanation for the delay between the time he called the agency "telephone center" in January 1996, and his subsequent telephone calls to the agency in February 1996. Appellant failed to present adequate justification pursuant to 29 C.F.R. §1614.105(a)(2), for extending the limitation period beyond forty-five days. Accordingly, the agency's decision to dismiss appellant's complaint for failure to initiate contact with an EEO Counselor in a timely fashion was proper and is AFFIRMED. | Ambert A. Elomina, )
Appellant, )
)
v. ) Appeal No. 01980724
) Agency No. 4F-967-1018-96
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
)
DECISION
Appellant filed an appeal with this Commission from a final decision of
the agency concerning his complaint of unlawful employment discrimination,
in violation of Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. §2000e et seq. The final agency decision was issued on
July 16, 1997. The appeal was received by the Commission on November
4, 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.
The record reflects that appellant was a Letter Carrier at the agency's
Guam Main Facility in Barrigada, Guam. On December 22, 1995, appellant
was terminated during his probationary period of employment.
On April 9, 1996, appellant filed a formal complaint, alleging that he
was the victim of unlawful employment discrimination on the basis of
race, when he was terminated. On July 23, 1996, the agency issued a
final decision, dismissing appellant's complaint for failure to timely
contact an EEO Counselor. The agency found that appellant initiated
contact with an EEO Counselor on February 26, 1996, more than forty-five
days after his termination on December 22, 1995.
On appeal, appellant argued that the agency incorrectly determined
that his initial EEO Counselor contact occurred on February 26, 1996.
Appellant enclosed copies of telephone bills for the period January
10, 1996, through March 12, 1996. Appellant argued that these bills
"clearly indicate that [he] filed the complaint on January 10, 1996,"
since two calls to the same number and the same destination in Puuloa,
Hawaii were made on that date. The phone bill copies also contained
six entries to a separate number in Puuloa, Hawaii, on February 6, 9,
13, 21, and 27, 1996, with the handwritten notation "EEO Hawaii."
The Commission found that it was unable to ascertain from the record
whether appellant's initial EEO contact occurred on January 10, 1996,
as he alleged on appeal, or on February 26, 1996, as determined by
the agency. The agency's decision to dismiss appellant's complaint
was vacated, and appellant's complaint was remanded to the agency. The
Commission ordered the agency to conduct a supplemental investigation to
determine appellant's initial EEO Counselor contact date. The Commission
specifically ordered the agency to indicate whether the telephone numbers
identified by appellant belong to the agency's EEO office; to obtain
statements from employees of the EEO Office indicating whether they were
contacted by appellant; and to obtain any other relevant information
regarding appellant's EEO contact. The agency was also ordered to
issue a final agency decision or notify appellant that the agency was
processing her complaint. Elomina v. USPS, EEOC Appeal No. 01966177
(June 23, 1997).
On July 16, 1997, the agency issued a final decision that is the
subject of the instant appeal. Therein, the agency again dismissed
appellant's complaint for failure to initiate timely EEO Counselor
contact. The agency stated that a supplemental investigation had
been conducted, in accordance with the Commission's Order of June 23,
1997. Relying upon an affidavit dated June 30, 1996, and prepared by
an agency EEO Counselor/Investigator, the agency found that the EEO
Counselor/Investigator stated that during the period January 10, 1996,
through March 12, 1996, she was assigned to the agency EEO Office in
Honolulu, Hawaii; and that her telephone number has, since 1993, been
the same. The agency further found that appellant called a different
number; and that this number used to be the number for the "telephone
center" in Honolulu, Hawaii.<2> Moreover, the agency found that if
appellant had telephoned the "telephone center," his call would have
been forwarded to the extension of the EEO Counselor/Investigator, once
the "telephone center" was aware of the nature of appellant's call.
Finally, the agency found that records disclosed that no calls were
forwarded to the EEO Counselor/Investigator from the "telephone center;"
that if any telephone calls had been forwarded to the EEO Counselor
Investigator, he would have referred appellant to the phone number
for the Northern California EEO Processing Center; and that the record
disclosed that appellant's call was not forwarded to the office of the
EEO Counselor/Investigator.
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 the agency properly found that appellant's
initial EEO Counselor contact was untimely. Appellant's complaint
addresses his termination from agency employment on December 22, 1995.
The record reflects that, within the forty-five day period that followed
his December 22, 1995 termination, appellant made two calls to an agency
telephone number at an agency "telephone center" in Hawaii, on January
10, 1996. However, the record contains the testimony of an agency EEO
official who stated that the two calls made to an agency "telephone
center" in Honolulu would have been forwarded to an EEO Counselor once
the "telephone center" had been aware of the nature of appellant's calls.
The EEO official stated that appellant's calls were not forwarded to
the office of EEO Counselor in January 1996. The record, moreover,
reflects that appellant made numerous telephone calls to the agency
following the expiration of the forty-five day limitation period, in
February 1996. Appellant has not, however, provided any explanation
for the delay between the time he called the agency "telephone center"
in January 1996, and his subsequent telephone calls to the agency in
February 1996. Appellant failed to present adequate justification
pursuant to 29 C.F.R. §1614.105(a)(2), for extending the limitation
period beyond forty-five days. Accordingly, the agency's decision to
dismiss appellant's complaint for failure to initiate contact with an
EEO Counselor in a timely fashion was proper and is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. §1614.407. All requests and arguments
must bear proof of postmark and be submitted to the Director, Office of
Federal Operations, Equal Employment Opportunity Commission, P.O. Box
19848, Washington, D.C. 20036. In the absence of a legible postmark,
the request to reconsider shall be deemed filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and any supporting documentation must be submitted with your
request for reconsideration. The Commission will consider requests
for reconsideration filed after the deadline only in very limited
circumstances. See 29 C.F.R. §1614.604(c).
RIGHT TO FILE A CIVIL ACTION (S0993)
It is the position of the Commission that you have the right to file
a civil action in an appropriate United States District Court WITHIN
NINETY (90) CALENDAR DAYS from the date that you receive this decision.
You should be aware, however, that courts in some jurisdictions have
interpreted the Civil Rights Act of 1991 in a manner suggesting that
a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the
date that you receive this decision. To ensure that your civil action
is considered timely, you are advised to file it WITHIN THIRTY (30)
CALENDAR DAYS from the date that you receive this decision or to consult
an attorney concerning the applicable time period in the jurisdiction
in which your action would be filed. 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:
Nov. 10, 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.
2 In her June 30, 1996 affidavit, the EEO Counselor/Investigator stated
that the "telephone center" had been "recently" dismantled and that all
telephone calls were thereafter forwarded to Denver, Colorado.
| [
"Elomina v. USPS, EEOC Appeal No. 01966177 (June 23, 1997)",
"Ball v. USPS, EEOC Request No. 05880247 (July 6, 1988)"
] | [
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0.04107413813471794,
0.04062265902757645,
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0.024986984208226204,
0.08054951578378677,
0.02114725485444069,
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-0.011... | |
152 | https://www.eeoc.gov/sites/default/files/migrated_files/decisions/01993153.txt | 01993153.txt | TXT | text/plain | 12,745 | Michael Ruppel v. USPS 01993153 December 13, 2000 . Michael C. Ruppel, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, (Allegheny Area), Agency. | December 13, 2000 | Appeal Number: 01993153
Complaint Allegations:
In his complaint, complainant alleged discrimination on the basis of retaliation (prior EEO activity) when: (1) on April 14, 1998, he was placed on administrative leave; (2) on April 14, 1998, he was interrogated by Postal Inspectors and asked to provide a medical release of records and not paid for two hours overtime [for the time] he was questioned; (3) on May 22, 1998, he received a letter requesting that he obtain authorization to come back to work from his doctor as well as clearance from a medical unit at the main post office, but he was unable to comply on such short notice and had to use 16 hours of annual leave. BACKGROUND
Background:
The agency dismissed the complaint pursuant to EEOC Regulation 29
C.F.R. § 1614.105, now codified at 29 C.F.R. § 1614.107(a)(2), noting
that complainant did not initiate contact with an EEO counselor until
July 8, 1998, more than 45 days after the alleged discriminatory acts
about which he complained.
On appeal, complainant argues, that having been placed on administrative
leave until May 22, 1998, he was reluctant to file any additional
complaints for fear of not being allowed to return to work. Complainant
also argues that he was previously arrested for trying to attend a
pre-complaint counseling session involving a previous EEO complaint
and was concerned for a period of time for his personal safety.
Complainant further submits that he was under psychiatric care and
suffered considerably after the arrest. Finally, complainant argues
that harassment continued after his return to work.
The agency responds that its position as stated in the FAD remains
unchanged and that complainant does not raise any new contentions.
The agency further submits that complainant has not provided any
evidence indicating that a waiver of the applicable time limits would
be appropriate, and that complainant was aware of the EEO process,
having participated in prior EEO activity.
Legal Analysis:
EEOC Regulation 29
C.F.R. § 1614.105, now codified at 29 C.F.R. § 1614.107(a)(2), noting
that complainant did not initiate contact with an EEO counselor until
July 8, 1998, more than 45 days after the alleged discriminatory acts
about which he complained.
On appeal, complainant argues, that having been placed on administrative
leave until May 22, 1998, he was reluctant to file any additional
complaints for fear of not being allowed to return to work. Complainant
also argues that he was previously arrested for trying to attend a
pre-complaint counseling session involving a previous EEO complaint
and was concerned for a period of time for his personal safety.
Complainant further submits that he was under psychiatric care and
suffered considerably after the arrest. Finally, complainant argues
that harassment continued after his return to work.
The agency responds that its position as stated in the FAD remains
unchanged and that complainant does not raise any new contentions.
The agency further submits that complainant has not provided any
evidence indicating that a waiver of the applicable time limits would
be appropriate, and that complainant was aware of the EEO process,
having participated in prior EEO activity.
ANALYSIS AND FINDINGS
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).
Fear of Potential Punishment
Complainant's first argument, about not being allowed to return to
work, concerns speculative and possible future harm. Complainant is
predicting the potential for a future harm., i.e., reprisal for being a
"troublemaker. There is no present injury to complainant, however.
We see no compelling reason in this instance for the concern over future
harm to justify extension of the time limit for contacting the EEO
counselor. In any event, complainant acknowledges that he was instructed
to come back to work on May 22, 1998, a number of days before the 45-day
time period expired for EEO counselor contact, with respect to the first
allegation, and the start of the 45-day time period with respect to the
second allegation. In any event, he was instructed to come back to work
well before July 8, 1998, when he finally did contact the EEO counselor.
Complainant gives no explanation why he could not have contacted an EEO
counselor sooner.
Arrest and Psychiatric Treatment
Complainant did not sufficiently detail or explain how his alleged
arrest or psychiatric treatment materially affected the untimeliness
of his EEO counselor contact on appeal.<2> 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. United States Postal Service, EEOC Request No. 05980475
(August 6, 1998); Crear v. United States Postal Service, EEOC Request
No. 05920700 (October 29, 1992). Complainant did not provide specifics
of his psychiatric treatment, with respect to his illness' duration,
severity, and impact, and his alleged inability to timely contact his
EEO counselor. According to complainant, the alleged arrest occurred
on April 14, 1998, and is one of the subjects of the complaint, supra.
The arrest, which involved questioning by agency officials, did not
involve incarceration. While complainant perceived himself to be in
custody, he realized after the first half of the questioning that he
was not in custody. It appears that the total questioning involved
two hours. Complainant did not otherwise address how the alleged
arrest so incapacitated his ability to contact his EEO counselor.
In sum, we fail to see how complainant was so incapacitated as to be
unable to timely contact his EEO counselor.
Harassment
Finally, complainant argues that there was continued harassment, after
he returned to work. Complainant must provide a factual explanation why
he believes that the alleged harassment is on-going, or otherwise allege
facts that are sufficient to indicate that he may have been subjected
to on-going harassment which continued into the 45-day period for EEO
counselor contact. See, e.g., Redmon v. Office of Personnel Management,
EEOC Request No. 05991100 (August 25, 2000) (sufficiency of factual
allegations where an on-going discriminatory system or policy is
alleged).
With one exception, complainant did not adequately detail or explain the
alleged continued harassment for purposes of considering the timeliness
of EEO counselor contact in this case.<3> Complainant thus complains of
the agency's requests for medical documentation for fitness for duty after
coming back to work. However, complainant had been off work since April
14, 1998, for apparent medical reasons. The agency's first request was
necessarily due to the fact that complainant had not yet furnished the
requested medical documentation to the agency. Complainant acknowledges
that it was he who brought his failure to furnish the documentation
to the agency's attention. Although there was a second request, which
complainant complied with, we think this is too slim a reed to include
in a pattern of continued harassment. In sum, while complainant devotes
some discussion to harassment in a general manner, there is insufficient
detailing of the nature of the harassment after he returned to work to
support an allegation of continued harassment.
Final Decision:
Accordingly, the agency's final decision dismissing complainant's complaint is AFFIRMED. | Michael Ruppel v. USPS
01993153
December 13, 2000
.
Michael C. Ruppel,
Complainant,
v.
William J. Henderson,
Postmaster General,
United States Postal Service,
(Allegheny Area),
Agency.
Appeal No. 01993153
Agency No. 4C440029898
DECISION
INTRODUCTION
Complainant filed a timely appeal with this Commission from a final
agency decision (FAD) dated February 10, 1999, dismissing his complaint
of unlawful employment discrimination (no statutory bases specified).<1>
The appeal is accepted pursuant to 29 C.F.R. § 1614.405. In his complaint,
complainant alleged discrimination on the basis of retaliation (prior EEO
activity) when: (1) on April 14, 1998, he was placed on administrative
leave; (2) on April 14, 1998, he was interrogated by Postal Inspectors
and asked to provide a medical release of records and not paid for two
hours overtime [for the time] he was questioned; (3) on May 22, 1998,
he received a letter requesting that he obtain authorization to come back
to work from his doctor as well as clearance from a medical unit at the
main post office, but he was unable to comply on such short notice and
had to use 16 hours of annual leave.
BACKGROUND
The agency dismissed the complaint pursuant to EEOC Regulation 29
C.F.R. § 1614.105, now codified at 29 C.F.R. § 1614.107(a)(2), noting
that complainant did not initiate contact with an EEO counselor until
July 8, 1998, more than 45 days after the alleged discriminatory acts
about which he complained.
On appeal, complainant argues, that having been placed on administrative
leave until May 22, 1998, he was reluctant to file any additional
complaints for fear of not being allowed to return to work. Complainant
also argues that he was previously arrested for trying to attend a
pre-complaint counseling session involving a previous EEO complaint
and was concerned for a period of time for his personal safety.
Complainant further submits that he was under psychiatric care and
suffered considerably after the arrest. Finally, complainant argues
that harassment continued after his return to work.
The agency responds that its position as stated in the FAD remains
unchanged and that complainant does not raise any new contentions.
The agency further submits that complainant has not provided any
evidence indicating that a waiver of the applicable time limits would
be appropriate, and that complainant was aware of the EEO process,
having participated in prior EEO activity.
ANALYSIS AND FINDINGS
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).
Fear of Potential Punishment
Complainant's first argument, about not being allowed to return to
work, concerns speculative and possible future harm. Complainant is
predicting the potential for a future harm., i.e., reprisal for being a
"troublemaker. There is no present injury to complainant, however.
We see no compelling reason in this instance for the concern over future
harm to justify extension of the time limit for contacting the EEO
counselor. In any event, complainant acknowledges that he was instructed
to come back to work on May 22, 1998, a number of days before the 45-day
time period expired for EEO counselor contact, with respect to the first
allegation, and the start of the 45-day time period with respect to the
second allegation. In any event, he was instructed to come back to work
well before July 8, 1998, when he finally did contact the EEO counselor.
Complainant gives no explanation why he could not have contacted an EEO
counselor sooner.
Arrest and Psychiatric Treatment
Complainant did not sufficiently detail or explain how his alleged
arrest or psychiatric treatment materially affected the untimeliness
of his EEO counselor contact on appeal.<2> 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. United States Postal Service, EEOC Request No. 05980475
(August 6, 1998); Crear v. United States Postal Service, EEOC Request
No. 05920700 (October 29, 1992). Complainant did not provide specifics
of his psychiatric treatment, with respect to his illness' duration,
severity, and impact, and his alleged inability to timely contact his
EEO counselor. According to complainant, the alleged arrest occurred
on April 14, 1998, and is one of the subjects of the complaint, supra.
The arrest, which involved questioning by agency officials, did not
involve incarceration. While complainant perceived himself to be in
custody, he realized after the first half of the questioning that he
was not in custody. It appears that the total questioning involved
two hours. Complainant did not otherwise address how the alleged
arrest so incapacitated his ability to contact his EEO counselor.
In sum, we fail to see how complainant was so incapacitated as to be
unable to timely contact his EEO counselor.
Harassment
Finally, complainant argues that there was continued harassment, after
he returned to work. Complainant must provide a factual explanation why
he believes that the alleged harassment is on-going, or otherwise allege
facts that are sufficient to indicate that he may have been subjected
to on-going harassment which continued into the 45-day period for EEO
counselor contact. See, e.g., Redmon v. Office of Personnel Management,
EEOC Request No. 05991100 (August 25, 2000) (sufficiency of factual
allegations where an on-going discriminatory system or policy is
alleged).
With one exception, complainant did not adequately detail or explain the
alleged continued harassment for purposes of considering the timeliness
of EEO counselor contact in this case.<3> Complainant thus complains of
the agency's requests for medical documentation for fitness for duty after
coming back to work. However, complainant had been off work since April
14, 1998, for apparent medical reasons. The agency's first request was
necessarily due to the fact that complainant had not yet furnished the
requested medical documentation to the agency. Complainant acknowledges
that it was he who brought his failure to furnish the documentation
to the agency's attention. Although there was a second request, which
complainant complied with, we think this is too slim a reed to include
in a pattern of continued harassment. In sum, while complainant devotes
some discussion to harassment in a general manner, there is insufficient
detailing of the nature of the harassment after he returned to work to
support an allegation of continued harassment.
CONCLUSION
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. The record discloses that the alleged discriminatory
events, which were dismissed, occurred on April 14 and May 22, 1998,
but complainant did not initiate contact with an EEO Counselor until
July 8, 1998, which is beyond the forty-five (45) day limitation period.
On appeal, no persuasive arguments or evidence have been presented to
warrant an extension of the time limit for initiating EEO contact.
Accordingly, the agency's final decision dismissing complainant's
complaint 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 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.
2The record indicates that complainant has suffered from depression.
3Nevertheless, complainant is advised that if he wishes to pursue,
through the EEO process, the harassment claim, separate and apart from
retaliation, raised for the first time on appeal, he shall initiate
contact with an EEO Counselor within 15 days after he receives this
decision. The Commission advises the agency that if complainant seeks
EEO counseling regarding the new claim within the above 15-day period,
the date complainant filed the appeal statement in which he raised the
claim with the agency shall be deemed to be the date of the initial
EEO contact, unless he previously contacted a counselor regarding these
matters, in which case the earlier date would serve as the EEO Counselor
contact date. Cf. Alexander J. Qatsha v. Department of the Navy, EEOC
Request No. 05970201 (January 16, 1998).
| [
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"Crear v. United States Postal Service, EEOC Request No. 05920700 (October 29, 1992)",
"Redmon v. Office of Personnel Management, EEOC Request No. 05991100 (August 25, 2000)",
"Alexander J. Qatsha v. Department of the Navy, E... | [
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153 | https://www.eeoc.gov/sites/default/files/decisions/2023_09_07/0320170007.pdf | 0320170007.pdf | PDF | application/pdf | 31,265 | October 7, 2016 | Appeal Number: 2019003363
Background:
Petitioner worked as a Program Analyst, GS -14, at the Department of Defense, Financial
Management Division (FMD), Washington Headquarters Service (WHS) in Washington, D.C. She began working in 2009. In 2010, she filed her first complaint, EEO Complaint #1, alleging
that her former immediate supervisor (FS) created a hostile work environment. She also named her then -current supervisors S1 and S2 in this complaint.
Also in 2010, Pe titioner began a two- year detail to the Agency’s Office of the Comptroller
(OOC) working under A1. Towards the end of the detail, Petitioner sought a permanent position with the OOC so that she did not have to return to the FMD. On April 27, 2012, S3, Pet itioner’s
third -level supervisor, told A1 about Petitioner’s EEO activities. S3 claimed that she spoke to
A1 because she was trying to find a position for Petitioner in order to settle her complaint but that it was difficult to find something Petitioner w ould accept.
Petitioner thereafter filed a second EEO complaint, EEO Complaint #2, alleging that S3 retaliated against her and interfered with her employment prospects. The Agency initially dismissed EEO Complaint #2 on the grounds that it did not state a claim.
3 S3 also, at this time,
contacted the Department of the Air Force to determine, according to S3, whether there were any problems when Petitioner worked for that agency. She was informed that Petitioner had filed EEO complaints while there.
On April 25, 2012, Petitioner was deposed as part of the discovery process concerning EEO
Complaint #1. After the deposition, several attorneys who were representing the Agency met with S3 regarding Petitioner’s deposition testimony and her answers to seve ral interrogatories.
2 According to the record, a hearing was held on this complaint in September 2016, and the
parties are awaiting a decision in EEOC Hearing No. 570- 2011- 00386X. We note that, as this
petition has been pending, EEO Compliant #1 has been addressed by the Commission on appeal in Stormy M. v. Dep’t of Def., EEOC Appeal No. 2019003363 (Jan. 22, 2020) , req. for recon.
den’d., EEOC Request No. 2020002692 (Sept. 10, 2020).
3 On appeal, the Office of Federal Operations reversed the Agency’s final decision after finding
that a reasonable person in Petitioner’s position may have been deterred from engaging i n
protected EEO activities by the type of actions attributed to S3. See EEOC Appeal No.
0120130316 (Mar. 27, 2014), req. for recon . den., EEOC Request No. 0520140325 (Feb. 13,
2015). Upon remand, the Agency, after an investigation, issued a final decision finding no discrimination. In Jazmine F. v. Dep’t of Def. , EEOC Appeal No. 0120162132 (June 22, 2018),
we found that Petitioner had been subjected to unlawful retaliation when the Director of FMD contacted her detail supervisor (S2) and informed them tha t Petitioner had engaged in settlement
discussions for an EEO complaint.
Petitioner had been asked a series of questions regarding whether she had been a part y to any
Civil or Tax Court actions. Petitioner had maintained that she had not been a party to any such
activities. The Agency performed a search of public records, however, and found that Petitioner
had multiple appearances in the U.S. Tax Court and the Maryland State Courts. In a June 8, 2012, email to the Human Resources Division Manager (HRDM), S3 asked if
Petitioner could be removed from her employment based on her deposition answers. S3 wrote, in pertinent part:
[A]ttached is the information on [Petitioner] that we discussed. See outline from [General Counsel] below. The question is, since it appears she has lied under oath about not havi ng tax issues, what disciplinary action is appropriate? As a result of
this EEO complaint, we have found that she has made a career of filing EEO complaints. She has done so in several agencies. She admits to it at Commerce and an intel organization. B ut I know for a fact that she has filed EEO complaints
at Joint Staff and AF as well. Based on the attached information is dismissal possible? If not, what is appropriate [?]
S3 suggested that HRDM speak with C1, a n HRD employee who had worked with FS i n the past
to discipline Petitioner. Ultimately, C1 was enlisted to advise on Petitioner’s current situation. She recommended that Petitioner be removed. On June 11, 2012, S3 emailed S2. She forwarded him an email from HRDM, and asked him, “Please come see me on this tomorrow AM [sic].
Save reading the attachments until after the meeting. This will take a while thanks [sic].”
During the course of its investigation, the Agency also determined that Petitioner had provided
erroneous responses on two Sta ndard Forms 86, dated 2003 and 2009 which are, respectively,
applications for, or to renew , a security clearance.
S3 met with S2 and told him what the Agency’s Office of General Counsel attorneys had discussed with her. She also told him that Petitioner had filed a number of EEO complaints at other agencies. According to S2, he subsequently received a proposal to rem ove Petitioner. S1
was the proposing official. S2 acknowledged that S3 periodically checked on the status of the removal action.
S3 acknowledged that she met with S2 about the situation but maintained that she told him that
the disciplinary process needed to be handled by the first - and second -line supervisors. S3
indicated that she did not think that Petitioner had filed an EEO complaint against her, but she did recall that Petitioner was “unhappy” with her because she was unable to find a permanent position where Petitioner had been detailed.
Petitioner maintained that she did not recall her prior court activity and therefore responded in the negative when she was asked about it during he r EEO complaint investigation. She described
her memory as being like “a bucket that overflowed with information when it got full.”
Petitioner also argued that the information that she provided should not have been used against
her in support of her termi nation, and that she had over thirty years of service and had earned
good performance evaluations. The Agency issued Complainant a Proposal of Removal. S1 noted therein, in pertinent, part:
On March 1, 2012, you provided written responses to the Agen cy’s discovery
requests in connection with your Equal Employment Opportunity (EEO) complaint, EEOC No. 570- 3022- 00386X, which alleged, inter alia, a hostile
working environment. You certified that your responses were “… true to the best of my memory and be lief.” A copy of your salient responses to the agency’s
written discovery requests are attached to this proposal. On April 25,2012, you gave testimony in a deposition conducted by an Agency attorney in connection with the same EEO Complaint cited in the a bove
paragraph. In connection with that deposition, you were “duly sworn” to tell the truth by a Notary Public for the District of Columbia. A copy of salient portions of your sworn deposition is attached to this Proposal.
S1 cited seven specifications u nder the charge of Lack of Candor:
1) Specification One
In your response to the Agency’s discovery request, dated March 1, 2012, you responded as follows:
QUESTION 20. In the past 5 years, have you been involved in any civil and/or criminal legal proceedings? If so, describe the circumstances surrounding the proceedings and the outcome. RESPONSE. Nol. [sic]
2) Specification Two
Additionally, in your April 25, 2012, sworn deposition, you responded as follows. Question: Have you been a party to any lawsuits before this complaint?
Answer: Not that I’m aware of.
3) Specification Three
Section 28 of the 2009 SF -86 asks as follows: “In the last seven years . . . have you ever
been a party to a public record civil court action(s) not listed elsewhere o n this form?”
On October 14, 2009, you answered, “No.” Nowhere else on your 2009 SF -86 do you
reference the July 2008 lawsuit between you and [a law firm ].
As evidenced by the Maryland Judiciary records detailed above, you were sued by [a law firm] in Jul y 2008 and were also sued by [a business] in February 2010. Additionally,
you sued [another business] in the Circuit Court for Montgomery County on September 28, 2000. That case was dismissed on July 18, 2001. Consequently, your sworn responses in the thre e specifications above lacked candor.
4) Specification Four
In your April 25, 2012, sworn deposition, you responded as follows. Question: Have you ever had any judgments against you in civil or administrative court?
Answer: Not that I am aware of.
5) Sp ecification Five
In your April 25, 2012, sworn deposition, you responded as follows.
Question: Do you have any tax problems?
Answer: No.
Question: Have you ever?
Answer: No, not that I’m aware of.
6) Specification Six
In your April 25, 2012, sworn deposition, you responded as follows.
Question: Have you ever been in tax court?
Answer: I don’t recall being in tax court.
7) Specification Seven
Question 40 of the 2003 SF -86 asks as follows: “In the last seven years, have you ever
been a party to a public record civil court action(s) not listed elsewhere on this form?” On
October 14, 2003, you answered, “No.” Nowhere else on your 2003 SF -86 do you
reference the 1999 Tax Court case detailed above.
S2, the deciding official, sustained each speci fication in the proposal.4 He maintained that
removal was appropriate based on Petitioner’s “untruthful statements in the course of [her]
deposition and in [her] responses to written discovery.” As an aggravating factor, S2 listed,
among other things, th at Petitioner’s “[a]ttempting to block the Agency from discovering
potential damage set -offs in [her] lawsuit is directly connected to [her] stated efforts to claim
$300,000 in damages from the Agency.”
After her removal, Petitioner filed a mixed -case com plaint. The Agency issued a decision that
found no discrimination. Petitioner then filed an appeal with the MSPB. Petitioner alleged that the Agency discriminated against her on the bases of race (African- American), sex (female),
disability (forgetfulne ss, memory impairment), and reprisal for prior protected EEO activity
when, on August 13, 2012, the Agency proposed her removal based on a charge of Lack of Candor with seven specifications. The Agency maintained that it did not charge her with
falsificat ion but rather with inaccuracy and therefore a showing of intent to defraud or deceive
was not required.
A hearing was held and thereafter an MSPB Administrative Judge (AJ) issued an initial decision finding that the Agency’s penalty of removal was reasonable and promoted the efficiency of the
service. The AJ also found that Petitioner did not prove her affirmative defenses that she was
subjected to reprisal, race, sex, and disability discrimination. Specifically, the AJ found that ,
with respect to Petitioner’s claims of discrimination based on race, sex, and disability, she did
not establish a prima facie case of discrimination as she failed to identify any other employees
that had lied under oath and were allowed to retain their jobs. Notwithstanding, assuming that
Petitioner had established a prima facie case of discrimination as to all bases, the AJ found that
the Agency articulated legitimate, nondiscriminatory reasons for its actions, i.e., Petitioner was
removed because it was discovered that she had repeatedly lied on official forms and in her EEO
complaint documents. The AJ also found that Petitioner did not show that the Agency’s actions were pretext for discrimination.
With respect to Petitioner’s reprisal claim, the AJ specifically fo und that the charged misconduct
had a direct relationship to Petitioner’s duties and her service with the Federal government. The
AJ also found that Petitioner was unable to establish that her removal was taken because of her
protected activity. The AJ f ound that, although S2 and S1 were aware of Petitioner’s prior EEO
activity, the severity of Petitioner’s misconduct outweighed any retaliatory motive. According to
the AJ:
In this case, I find that the appellant’s false statements, repeated multiple times in several forums, including her deposition, her sworn interrogatory responses, and her statements on the SF -86, twice, under penalty of perjury were all so egregious,
that their significance overwhelms any possible motive to retaliate.
4S2 indicated that the original plan was to reassign Petitioner , until after the discovery of her
repeated false statements.
In light of all the evidence, I find that the appellant has failed to show
preponderant evidence that the agency’s action was based on retaliation for protected EEO activity.
Thereafter, Petitioner sought full review by the Board. The Board, however, was unable to reach a determination because the two sitting Board members could not agree on the appropriate
disposition. Accordingly, the initial decision became the final decision of the MSPB. Petitioner then filed the instant petition. On petition for review, Petitioner , among other arguments, questions whether statements made
during an EEO proceeding may later be used to fire an employee and/or whether the use of said statements would have a “chilling effect” on EEO complainants. She also maintains that the AJ
made multiple errors in his analysis concerning her claim of retaliation ; for example, applying a
“but for” burden of proof standard, instead of asking whether retaliation was a motivating factor in her termination, and by finding that S3 did not influenc e the termination decision. Petitioner
also maintained that the AJ misapplied the “mixed motive” analysis.
Legal Analysis:
the Commission’s anti- retaliation regulations by using,
among other things, her responses made during discovery concerning a pending EEO complaint to affect her removal.
3. Whether Petitioner’s chain of command made comments that constitute direct evidence
of discrimination regarding her removal.
BACKGROUND
Petitioner worked as a Program Analyst, GS -14, at the Department of Defense, Financial
Management Division (FMD), Washington Headquarters Service (WHS) in Washington, D.C. She began working in 2009. In 2010, she filed her first complaint, EEO Complaint #1, alleging
that her former immediate supervisor (FS) created a hostile work environment. She also named her then -current supervisors S1 and S2 in this complaint.
Also in 2010, Pe titioner began a two- year detail to the Agency’s Office of the Comptroller
(OOC) working under A1. Towards the end of the detail, Petitioner sought a permanent position with the OOC so that she did not have to return to the FMD. On April 27, 2012, S3, Pet itioner’s
third -level supervisor, told A1 about Petitioner’s EEO activities. S3 claimed that she spoke to
A1 because she was trying to find a position for Petitioner in order to settle her complaint but that it was difficult to find something Petitioner w ould accept.
Petitioner thereafter filed a second EEO complaint, EEO Complaint #2, alleging that S3 retaliated against her and interfered with her employment prospects. The Agency initially dismissed EEO Complaint #2 on the grounds that it did not state a claim.
3 S3 also, at this time,
contacted the Department of the Air Force to determine, according to S3, whether there were any problems when Petitioner worked for that agency. She was informed that Petitioner had filed EEO complaints while there.
On April 25, 2012, Petitioner was deposed as part of the discovery process concerning EEO
Complaint #1. After the deposition, several attorneys who were representing the Agency met with S3 regarding Petitioner’s deposition testimony and her answers to seve ral interrogatories.
2 According to the record, a hearing was held on this complaint in September 2016, and the
parties are awaiting a decision in EEOC Hearing No. 570- 2011- 00386X. We note that, as this
petition has been pending, EEO Compliant #1 has been addressed by the Commission on appeal in Stormy M. v. Dep’t of Def., EEOC Appeal No. 2019003363 (Jan. 22, 2020) , req. for recon.
den’d., EEOC Request No. 2020002692 (Sept. 10, 2020).
3 On appeal, the Office of Federal Operations reversed the Agency’s final decision after finding
that a reasonable person in Petitioner’s position may have been deterred from engaging i n
protected EEO activities by the type of actions attributed to S3. See EEOC Appeal No.
0120130316 (Mar. 27, 2014), req. for recon . den., EEOC Request No. 0520140325 (Feb. 13,
2015). Upon remand, the Agency, after an investigation, issued a final decision finding no discrimination. In Jazmine F. v. Dep’t of Def. , EEOC Appeal No. 0120162132 (June 22, 2018),
we found that Petitioner had been subjected to unlawful retaliation when the Director of FMD contacted her detail supervisor (S2) and informed them tha t Petitioner had engaged in settlement
discussions for an EEO complaint.
Petitioner had been asked a series of questions regarding whether she had been a part y to any
Civil or Tax Court actions. Petitioner had maintained that she had not been a party to any such
activities. The Agency performed a search of public records, however, and found that Petitioner
had multiple appearances in the U.S. Tax Court and the Maryland State Courts. In a June 8, 2012, email to the Human Resources Division Manager (HRDM), S3 asked if
Petitioner could be removed from her employment based on her deposition answers. S3 wrote, in pertinent part:
[A]ttached is the information on [Petitioner] that we discussed. See outline from [General Counsel] below. The question is, since it appears she has lied under oath about not havi ng tax issues, what disciplinary action is appropriate? As a result of
this EEO complaint, we have found that she has made a career of filing EEO complaints. She has done so in several agencies. She admits to it at Commerce and an intel organization. B ut I know for a fact that she has filed EEO complaints
at Joint Staff and AF as well. Based on the attached information is dismissal possible? If not, what is appropriate [?]
S3 suggested that HRDM speak with C1, a n HRD employee who had worked with FS i n the past
to discipline Petitioner. Ultimately, C1 was enlisted to advise on Petitioner’s current situation. She recommended that Petitioner be removed. On June 11, 2012, S3 emailed S2. She forwarded him an email from HRDM, and asked him, “Please come see me on this tomorrow AM [sic].
Save reading the attachments until after the meeting. This will take a while thanks [sic].”
During the course of its investigation, the Agency also determined that Petitioner had provided
erroneous responses on two Sta ndard Forms 86, dated 2003 and 2009 which are, respectively,
applications for, or to renew , a security clearance.
S3 met with S2 and told him what the Agency’s Office of General Counsel attorneys had discussed with her. She also told him that Petitioner had filed a number of EEO complaints at other agencies. According to S2, he subsequently received a proposal to rem ove Petitioner. S1
was the proposing official. S2 acknowledged that S3 periodically checked on the status of the removal action.
S3 acknowledged that she met with S2 about the situation but maintained that she told him that
the disciplinary process needed to be handled by the first - and second -line supervisors. S3
indicated that she did not think that Petitioner had filed an EEO complaint against her, but she did recall that Petitioner was “unhappy” with her because she was unable to find a permanent position where Petitioner had been detailed.
Petitioner maintained that she did not recall her prior court activity and therefore responded in the negative when she was asked about it during he r EEO complaint investigation. She described
her memory as being like “a bucket that overflowed with information when it got full.”
Petitioner also argued that the information that she provided should not have been used against
her in support of her termi nation, and that she had over thirty years of service and had earned
good performance evaluations. The Agency issued Complainant a Proposal of Removal. S1 noted therein, in pertinent, part:
On March 1, 2012, you provided written responses to the Agen cy’s discovery
requests in connection with your Equal Employment Opportunity (EEO) complaint, EEOC No. 570- 3022- 00386X, which alleged, inter alia, a hostile
working environment. You certified that your responses were “… true to the best of my memory and be lief.” A copy of your salient responses to the agency’s
written discovery requests are attached to this proposal. On April 25,2012, you gave testimony in a deposition conducted by an Agency attorney in connection with the same EEO Complaint cited in the a bove
paragraph. In connection with that deposition, you were “duly sworn” to tell the truth by a Notary Public for the District of Columbia. A copy of salient portions of your sworn deposition is attached to this Proposal.
S1 cited seven specifications u nder the charge of Lack of Candor:
1) Specification One
In your response to the Agency’s discovery request, dated March 1, 2012, you responded as follows:
QUESTION 20. In the past 5 years, have you been involved in any civil and/or criminal legal proceedings? If so, describe the circumstances surrounding the proceedings and the outcome. RESPONSE. Nol. [sic]
2) Specification Two
Additionally, in your April 25, 2012, sworn deposition, you responded as follows. Question: Have you been a party to any lawsuits before this complaint?
Answer: Not that I’m aware of.
3) Specification Three
Section 28 of the 2009 SF -86 asks as follows: “In the last seven years . . . have you ever
been a party to a public record civil court action(s) not listed elsewhere o n this form?”
On October 14, 2009, you answered, “No.” Nowhere else on your 2009 SF -86 do you
reference the July 2008 lawsuit between you and [a law firm ].
As evidenced by the Maryland Judiciary records detailed above, you were sued by [a law firm] in Jul y 2008 and were also sued by [a business] in February 2010. Additionally,
you sued [another business] in the Circuit Court for Montgomery County on September 28, 2000. That case was dismissed on July 18, 2001. Consequently, your sworn responses in the thre e specifications above lacked candor.
4) Specification Four
In your April 25, 2012, sworn deposition, you responded as follows. Question: Have you ever had any judgments against you in civil or administrative court?
Answer: Not that I am aware of.
5) Sp ecification Five
In your April 25, 2012, sworn deposition, you responded as follows.
Question: Do you have any tax problems?
Answer: No.
Question: Have you ever?
Answer: No, not that I’m aware of.
6) Specification Six
In your April 25, 2012, sworn deposition, you responded as follows.
Question: Have you ever been in tax court?
Answer: I don’t recall being in tax court.
7) Specification Seven
Question 40 of the 2003 SF -86 asks as follows: “In the last seven years, have you ever
been a party to a public record civil court action(s) not listed elsewhere on this form?” On
October 14, 2003, you answered, “No.” Nowhere else on your 2003 SF -86 do you
reference the 1999 Tax Court case detailed above.
S2, the deciding official, sustained each speci fication in the proposal.4 He maintained that
removal was appropriate based on Petitioner’s “untruthful statements in the course of [her]
deposition and in [her] responses to written discovery.” As an aggravating factor, S2 listed,
among other things, th at Petitioner’s “[a]ttempting to block the Agency from discovering
potential damage set -offs in [her] lawsuit is directly connected to [her] stated efforts to claim
$300,000 in damages from the Agency.”
After her removal, Petitioner filed a mixed -case com plaint. The Agency issued a decision that
found no discrimination. Petitioner then filed an appeal with the MSPB. Petitioner alleged that the Agency discriminated against her on the bases of race (African- American), sex (female),
disability (forgetfulne ss, memory impairment), and reprisal for prior protected EEO activity
when, on August 13, 2012, the Agency proposed her removal based on a charge of Lack of Candor with seven specifications. The Agency maintained that it did not charge her with
falsificat ion but rather with inaccuracy and therefore a showing of intent to defraud or deceive
was not required.
A hearing was held and thereafter an MSPB Administrative Judge (AJ) issued an initial decision finding that the Agency’s penalty of removal was reasonable and promoted the efficiency of the
service. The AJ also found that Petitioner did not prove her affirmative defenses that she was
subjected to reprisal, race, sex, and disability discrimination. Specifically, the AJ found that ,
with respect to Petitioner’s claims of discrimination based on race, sex, and disability, she did
not establish a prima facie case of discrimination as she failed to identify any other employees
that had lied under oath and were allowed to retain their jobs. Notwithstanding, assuming that
Petitioner had established a prima facie case of discrimination as to all bases, the AJ found that
the Agency articulated legitimate, nondiscriminatory reasons for its actions, i.e., Petitioner was
removed because it was discovered that she had repeatedly lied on official forms and in her EEO
complaint documents. The AJ also found that Petitioner did not show that the Agency’s actions were pretext for discrimination.
With respect to Petitioner’s reprisal claim, the AJ specifically fo und that the charged misconduct
had a direct relationship to Petitioner’s duties and her service with the Federal government. The
AJ also found that Petitioner was unable to establish that her removal was taken because of her
protected activity. The AJ f ound that, although S2 and S1 were aware of Petitioner’s prior EEO
activity, the severity of Petitioner’s misconduct outweighed any retaliatory motive. According to
the AJ:
In this case, I find that the appellant’s false statements, repeated multiple times in several forums, including her deposition, her sworn interrogatory responses, and her statements on the SF -86, twice, under penalty of perjury were all so egregious,
that their significance overwhelms any possible motive to retaliate.
4S2 indicated that the original plan was to reassign Petitioner , until after the discovery of her
repeated false statements.
In light of all the evidence, I find that the appellant has failed to show
preponderant evidence that the agency’s action was based on retaliation for protected EEO activity.
Thereafter, Petitioner sought full review by the Board. The Board, however, was unable to reach a determination because the two sitting Board members could not agree on the appropriate
disposition. | U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, D.C. 20013
Jazmine F .,1
Petitioner,
v.
Lloyd J. Austin III,
Secretary,
Department of Defense
(Office of the Secretary of Defense),
Agency.
Petition No. 0320170007
MSPB No. DC -0752-14-0739-I-1
DECISION
On October 7, 2016, Petitioner filed a timely petition with the Equal Employment Opportunity Commission (EEOC or Commission) asking for review of a Final Order issued by the Merit Systems Protection Board (MSPB) concerning her claim of discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. § 2000e et seq. and
Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. For the reasons stated below, we DIFFER with the MSPB decision.
ISSUES PRESENTED
The issues presented are:
1. Whether Petitioner’s third -level supervisor’s comments about Petitioner’s prior EEO
activity were reasonably likely to deter her and other employees from engaging in protected activity.
2. Whether the Agency vi olated the Commission’s anti- retaliation regulations by using,
among other things, her responses made during discovery concerning a pending EEO complaint to affect her removal.
3. Whether Petitioner’s chain of command made comments that constitute direct evidence
of discrimination regarding her removal.
BACKGROUND
Petitioner worked as a Program Analyst, GS -14, at the Department of Defense, Financial
Management Division (FMD), Washington Headquarters Service (WHS) in Washington, D.C. She began working in 2009. In 2010, she filed her first complaint, EEO Complaint #1, alleging
that her former immediate supervisor (FS) created a hostile work environment. She also named her then -current supervisors S1 and S2 in this complaint.
Also in 2010, Pe titioner began a two- year detail to the Agency’s Office of the Comptroller
(OOC) working under A1. Towards the end of the detail, Petitioner sought a permanent position with the OOC so that she did not have to return to the FMD. On April 27, 2012, S3, Pet itioner’s
third -level supervisor, told A1 about Petitioner’s EEO activities. S3 claimed that she spoke to
A1 because she was trying to find a position for Petitioner in order to settle her complaint but that it was difficult to find something Petitioner w ould accept.
Petitioner thereafter filed a second EEO complaint, EEO Complaint #2, alleging that S3 retaliated against her and interfered with her employment prospects. The Agency initially dismissed EEO Complaint #2 on the grounds that it did not state a claim.
3 S3 also, at this time,
contacted the Department of the Air Force to determine, according to S3, whether there were any problems when Petitioner worked for that agency. She was informed that Petitioner had filed EEO complaints while there.
On April 25, 2012, Petitioner was deposed as part of the discovery process concerning EEO
Complaint #1. After the deposition, several attorneys who were representing the Agency met with S3 regarding Petitioner’s deposition testimony and her answers to seve ral interrogatories.
2 According to the record, a hearing was held on this complaint in September 2016, and the
parties are awaiting a decision in EEOC Hearing No. 570- 2011- 00386X. We note that, as this
petition has been pending, EEO Compliant #1 has been addressed by the Commission on appeal in Stormy M. v. Dep’t of Def., EEOC Appeal No. 2019003363 (Jan. 22, 2020) , req. for recon.
den’d., EEOC Request No. 2020002692 (Sept. 10, 2020).
3 On appeal, the Office of Federal Operations reversed the Agency’s final decision after finding
that a reasonable person in Petitioner’s position may have been deterred from engaging i n
protected EEO activities by the type of actions attributed to S3. See EEOC Appeal No.
0120130316 (Mar. 27, 2014), req. for recon . den., EEOC Request No. 0520140325 (Feb. 13,
2015). Upon remand, the Agency, after an investigation, issued a final decision finding no discrimination. In Jazmine F. v. Dep’t of Def. , EEOC Appeal No. 0120162132 (June 22, 2018),
we found that Petitioner had been subjected to unlawful retaliation when the Director of FMD contacted her detail supervisor (S2) and informed them tha t Petitioner had engaged in settlement
discussions for an EEO complaint.
Petitioner had been asked a series of questions regarding whether she had been a part y to any
Civil or Tax Court actions. Petitioner had maintained that she had not been a party to any such
activities. The Agency performed a search of public records, however, and found that Petitioner
had multiple appearances in the U.S. Tax Court and the Maryland State Courts. In a June 8, 2012, email to the Human Resources Division Manager (HRDM), S3 asked if
Petitioner could be removed from her employment based on her deposition answers. S3 wrote, in pertinent part:
[A]ttached is the information on [Petitioner] that we discussed. See outline from [General Counsel] below. The question is, since it appears she has lied under oath about not havi ng tax issues, what disciplinary action is appropriate? As a result of
this EEO complaint, we have found that she has made a career of filing EEO complaints. She has done so in several agencies. She admits to it at Commerce and an intel organization. B ut I know for a fact that she has filed EEO complaints
at Joint Staff and AF as well. Based on the attached information is dismissal possible? If not, what is appropriate [?]
S3 suggested that HRDM speak with C1, a n HRD employee who had worked with FS i n the past
to discipline Petitioner. Ultimately, C1 was enlisted to advise on Petitioner’s current situation. She recommended that Petitioner be removed. On June 11, 2012, S3 emailed S2. She forwarded him an email from HRDM, and asked him, “Please come see me on this tomorrow AM [sic].
Save reading the attachments until after the meeting. This will take a while thanks [sic].”
During the course of its investigation, the Agency also determined that Petitioner had provided
erroneous responses on two Sta ndard Forms 86, dated 2003 and 2009 which are, respectively,
applications for, or to renew , a security clearance.
S3 met with S2 and told him what the Agency’s Office of General Counsel attorneys had discussed with her. She also told him that Petitioner had filed a number of EEO complaints at other agencies. According to S2, he subsequently received a proposal to rem ove Petitioner. S1
was the proposing official. S2 acknowledged that S3 periodically checked on the status of the removal action.
S3 acknowledged that she met with S2 about the situation but maintained that she told him that
the disciplinary process needed to be handled by the first - and second -line supervisors. S3
indicated that she did not think that Petitioner had filed an EEO complaint against her, but she did recall that Petitioner was “unhappy” with her because she was unable to find a permanent position where Petitioner had been detailed.
Petitioner maintained that she did not recall her prior court activity and therefore responded in the negative when she was asked about it during he r EEO complaint investigation. She described
her memory as being like “a bucket that overflowed with information when it got full.”
Petitioner also argued that the information that she provided should not have been used against
her in support of her termi nation, and that she had over thirty years of service and had earned
good performance evaluations. The Agency issued Complainant a Proposal of Removal. S1 noted therein, in pertinent, part:
On March 1, 2012, you provided written responses to the Agen cy’s discovery
requests in connection with your Equal Employment Opportunity (EEO) complaint, EEOC No. 570- 3022- 00386X, which alleged, inter alia, a hostile
working environment. You certified that your responses were “… true to the best of my memory and be lief.” A copy of your salient responses to the agency’s
written discovery requests are attached to this proposal. On April 25,2012, you gave testimony in a deposition conducted by an Agency attorney in connection with the same EEO Complaint cited in the a bove
paragraph. In connection with that deposition, you were “duly sworn” to tell the truth by a Notary Public for the District of Columbia. A copy of salient portions of your sworn deposition is attached to this Proposal.
S1 cited seven specifications u nder the charge of Lack of Candor:
1) Specification One
In your response to the Agency’s discovery request, dated March 1, 2012, you responded as follows:
QUESTION 20. In the past 5 years, have you been involved in any civil and/or criminal legal proceedings? If so, describe the circumstances surrounding the proceedings and the outcome. RESPONSE. Nol. [sic]
2) Specification Two
Additionally, in your April 25, 2012, sworn deposition, you responded as follows. Question: Have you been a party to any lawsuits before this complaint?
Answer: Not that I’m aware of.
3) Specification Three
Section 28 of the 2009 SF -86 asks as follows: “In the last seven years . . . have you ever
been a party to a public record civil court action(s) not listed elsewhere o n this form?”
On October 14, 2009, you answered, “No.” Nowhere else on your 2009 SF -86 do you
reference the July 2008 lawsuit between you and [a law firm ].
As evidenced by the Maryland Judiciary records detailed above, you were sued by [a law firm] in Jul y 2008 and were also sued by [a business] in February 2010. Additionally,
you sued [another business] in the Circuit Court for Montgomery County on September 28, 2000. That case was dismissed on July 18, 2001. Consequently, your sworn responses in the thre e specifications above lacked candor.
4) Specification Four
In your April 25, 2012, sworn deposition, you responded as follows. Question: Have you ever had any judgments against you in civil or administrative court?
Answer: Not that I am aware of.
5) Sp ecification Five
In your April 25, 2012, sworn deposition, you responded as follows.
Question: Do you have any tax problems?
Answer: No.
Question: Have you ever?
Answer: No, not that I’m aware of.
6) Specification Six
In your April 25, 2012, sworn deposition, you responded as follows.
Question: Have you ever been in tax court?
Answer: I don’t recall being in tax court.
7) Specification Seven
Question 40 of the 2003 SF -86 asks as follows: “In the last seven years, have you ever
been a party to a public record civil court action(s) not listed elsewhere on this form?” On
October 14, 2003, you answered, “No.” Nowhere else on your 2003 SF -86 do you
reference the 1999 Tax Court case detailed above.
S2, the deciding official, sustained each speci fication in the proposal.4 He maintained that
removal was appropriate based on Petitioner’s “untruthful statements in the course of [her]
deposition and in [her] responses to written discovery.” As an aggravating factor, S2 listed,
among other things, th at Petitioner’s “[a]ttempting to block the Agency from discovering
potential damage set -offs in [her] lawsuit is directly connected to [her] stated efforts to claim
$300,000 in damages from the Agency.”
After her removal, Petitioner filed a mixed -case com plaint. The Agency issued a decision that
found no discrimination. Petitioner then filed an appeal with the MSPB. Petitioner alleged that the Agency discriminated against her on the bases of race (African- American), sex (female),
disability (forgetfulne ss, memory impairment), and reprisal for prior protected EEO activity
when, on August 13, 2012, the Agency proposed her removal based on a charge of Lack of Candor with seven specifications. The Agency maintained that it did not charge her with
falsificat ion but rather with inaccuracy and therefore a showing of intent to defraud or deceive
was not required.
A hearing was held and thereafter an MSPB Administrative Judge (AJ) issued an initial decision finding that the Agency’s penalty of removal was reasonable and promoted the efficiency of the
service. The AJ also found that Petitioner did not prove her affirmative defenses that she was
subjected to reprisal, race, sex, and disability discrimination. Specifically, the AJ found that ,
with respect to Petitioner’s claims of discrimination based on race, sex, and disability, she did
not establish a prima facie case of discrimination as she failed to identify any other employees
that had lied under oath and were allowed to retain their jobs. Notwithstanding, assuming that
Petitioner had established a prima facie case of discrimination as to all bases, the AJ found that
the Agency articulated legitimate, nondiscriminatory reasons for its actions, i.e., Petitioner was
removed because it was discovered that she had repeatedly lied on official forms and in her EEO
complaint documents. The AJ also found that Petitioner did not show that the Agency’s actions were pretext for discrimination.
With respect to Petitioner’s reprisal claim, the AJ specifically fo und that the charged misconduct
had a direct relationship to Petitioner’s duties and her service with the Federal government. The
AJ also found that Petitioner was unable to establish that her removal was taken because of her
protected activity. The AJ f ound that, although S2 and S1 were aware of Petitioner’s prior EEO
activity, the severity of Petitioner’s misconduct outweighed any retaliatory motive. According to
the AJ:
In this case, I find that the appellant’s false statements, repeated multiple times in several forums, including her deposition, her sworn interrogatory responses, and her statements on the SF -86, twice, under penalty of perjury were all so egregious,
that their significance overwhelms any possible motive to retaliate.
4S2 indicated that the original plan was to reassign Petitioner , until after the discovery of her
repeated false statements.
In light of all the evidence, I find that the appellant has failed to show
preponderant evidence that the agency’s action was based on retaliation for protected EEO activity.
Thereafter, Petitioner sought full review by the Board. The Board, however, was unable to reach a determination because the two sitting Board members could not agree on the appropriate
disposition. Accordingly, the initial decision became the final decision of the MSPB. Petitioner then filed the instant petition. On petition for review, Petitioner , among other arguments, questions whether statements made
during an EEO proceeding may later be used to fire an employee and/or whether the use of said statements would have a “chilling effect” on EEO complainants. She also maintains that the AJ
made multiple errors in his analysis concerning her claim of retaliation ; for example, applying a
“but for” burden of proof standard, instead of asking whether retaliation was a motivating factor in her termination, and by finding that S3 did not influenc e the termination decision. Petitioner
also maintained that the AJ misapplied the “mixed motive” analysis.
ANALYSIS AND FINDINGS
EEOC regulations provide that the Commission has jurisdiction over mixed- case appeals on
which the MSPB has issued a de cision that includes determinations on allegations of
discrimination. 29 C.F.R. § 1614.303 et seq. The Commission must determine whether the
decision of the MSPB with respect to the allegation of discrimination constitutes a correct interpretation of any applicable law, rule, regulation or policy directive, and is supported by the
evidence in the record as a whole. 29 C.F.R. § 1614.305(c).
At the outset, we note that Petitioner did not specifically challenge the MSPB’s determination that the Agency did not discriminate against her based on race, sex, and disability. In fact, we note that, on petition for review, she maintained that this was a retaliation case. Because Petitioner did not specifically challenge the MSPB’s final decision with respect to ra ce, sex, and
disability, we exercise our discretion not to address in our decision its decision as to those bases .
See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD -
110), Ch. 9, § IV.A.3 (Aug. 5, 2015) (Commission has t he right to review all issues in a
complaint on appeal, but also has discretion not to do so and may focus only on issues specifically raised).
I. The Comments by S3
In its enforcement guidance on retaliation, the Commission states:
The anti-retaliation p rovisions make it unlawful to discriminate because an
individual has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under Title VII, the ADEA, the EPA, the ADA, the Rehabilitation Act, or GINA.
This language, known as the “participation clause,” provides protection from
retaliation for many actions, including filing or serving as a witness for any side in an administrative proceeding or lawsuit alleging discrimination in violation of an EEO law. The participation clause applies even if the underlying allegation is
not meritorious or was not timely filed. The Commission has long taken the position that the participation clause broadly protects EEO participation regardless of whether an individual has a reasonable, good faith belief that the
underlying allegations are, or could become, unlawful conduct. Although the Supreme Court has not addressed this question, the participation clause by its terms contains no limiting language, and protects from retaliation employees'
participation in a complaint, investigation, or adjudication process.
EEOC Enforcement Guidance on Retaliation and Related Issues , EEOC Notice 915.004 (Aug.
25, 2016) ( Retaliation Guidance ).
The Commission further states:
The Supreme Court has reasoned that broad participation protection is necessary
to achieve the primary statutory purpose of anti -retaliation provisions, which is
“maintaining unfettered access to statutory remedial mechanisms.” The application of the participa tion clause cannot depend on the substance of
testimony because, “[i]f a witness in [an EEO] proceeding were secure from retaliation only when her testimony met some slippery reasonableness standard, she would surely be less than forth- coming.” These prote ctions ensure that
individuals are not intimidated into forgoing the complaint process, and that those investigating and adjudicating EEO allegations can obtain witnesses’ unchilled testimony. It also avoids pre -judging the merits of a given allegation. Fo r these
reasons, the Commission disagrees with decisions holding to the contrary.
Id.
We find that the actions and comments by S3 were clearly in violation of the anti -retaliation
provisions of our regulations. As noted above, in deciding whether the com ments by S3 were
retaliatory, the test is whether her comments and actions were reasonably likely to deter
protected EEO activity by Petitioner or other employees. We note in this regard S3’s comments to the HRDM while seeking advice on whether to remove P etitioner, that because of EEO
Complaint #1, “we have found that she has made a career of filing EEO complaints.” S3’s comments to the HRDM further indicated that she had researched Petitioner’s EEO activity at other agencies. We also note that when S3 di scussed Petitioner’s conduct with S2, she again
mentioned Petitioner’s EEO activity.
We have held that the actions of a supervisor are discriminatory based on reprisal where the supervisor acts to intimidate an employee and interfere with his or her EEO a ctivity in any
manner.
See Binseel v. Dep't of the Army, EEOC Request No. 05970584 (Oct. 8, 1998); Yubuki v. Dep't
of the Army , EEOC Request No. 05920778 (June 4, 1993); see also Lindsey v. U.S. Postal Serv.,
EEOC Request No. 05980410 (Nov. 4, 1999). The s tatutory retaliation clauses prohibit any
adverse treatment that is based upon a retaliatory motive and is reasonably likely to deter a
complainant or others from engaging in protected activity. Id .; Robinson v. Shell Oil Co., 519
U.S. 337, 346 (1997). Accordingly, we find that the comments and actions of S3 were retaliatory against Petitioner separate and apart from her subsequent removal because they would have deterred a reasonable person from engaging in protected EEO ac tivity.
II. The use of Petitioner’s discovery responses
Likewise, we find that the Agency, by using Petitioner’s EEO discovery responses to support her removal, also violated our regulations. As the Commission’s guidance states:
This does not mean that bad faith actions taken in the course of participation are without consequence. False or bad faith statements by either the employee or the employer should be taken into appropriate account by the factfinder, investigator, or adjudicator of the EEO allegat ion when weighing credibility, ruling on
procedural matters, deciding on the scope of the factfinding process, and deciding if the claim has merit. It is the Commission’s position, however, that an employer can be liable for retaliation if it takes it upon itself to impose consequences for
actions taken in the course of participation .
Retaliation Guidance (emphasis added).
To the extent that management felt that Petitioner’s responses during the EEO discovery process were untruthful, they could have brought the matter to the attention of the EEOC Administrative Judge and sought sanctions. Instead, the Agency punished Petitioner, in large part, because of her participation in EEOC Complaint #1 and other EEO activities.
III. Petitioner’s Termination
Direct Evidence of Reprisal
The Commission has held:
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 (May 14, 2013).
In th is case, Petitioner engaged in protected activity under Title VII when she participated in the
discovery process regarding EEO Complaint #1. S3 was aware of Petitioner’s EEO activity. After being informed about several of Petitioner’s EEO discovery responses, S3 contacted HRDM in June 2012, and asked if dismissal was possible. Shortly thereafter, on August 13, 2012, S1 initiated a proposal to removal Petitioner, which was sustained by S2. Given S3’s negative comments about Petitioner’s EEO activity; management’s use, in part, of her EEO discovery responses as a justification for her removal; S3’s discussion with S2 of Petitioner’s EEO history; and the fact that S2 cited as an aggravating factor that Petitioner’s actions might have affected t he Agency’s ability to off -set her claim of $300,000 in damages in her EEO
complaint, we find that the facts of this case patently demonstrate a bias against Petitioner based on her protected activity, along with evidence linking that bias to the adverse a ction.
Accordingly, we find direct evidence of discrimination. Mixed -Motive Analysis
In light of our finding that Petitioner’s removal was motivated by reprisal, we further find that this matter should be reviewed under a mixed- motive analysis because t he deciding official also
provided a non- retaliatory reason for removing Petitioner, i.e., her responses on the 2003 and
2009 Standard Forms 86. Cases such as this, where there is evidence that discrimination 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 an employee demonstrates that discrimination was a motivating factor in the employer’s action, the burden shifts to t he
employer to prove, by clear and convincing evidence, that it would have taken the same action even if it had not considered the discriminatory factor. See Price Waterhouse v. Hopkins , 490
U.S. 228, 249, 258 (1989); Tellez v. Dep’t of the Army , EEOC Req uest No. 05A41133 (Mar. 18,
2005). If the employer is able to meet this burden, the employee is not entitled to personal relief, that is, damages, reinstatement, hiring, promotion, and/or back pay. But the employee nonetheless 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 meet its burden, the employer must offer objective evidence that it would have taken the same action even absent the dis crimination.
5 In this showing, the employer must produce proof
of a legitimate reason for the action that actually motivated it at the time of the decision.
5 See Price Waterhouse, 490 U.S. at 252 ( “[I]n most cases, the employer should be able to
present some objective evidence as to its probable decision in the absence of an impermissible motive”).
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, is not
sufficient. The employer 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). The employer’s alleged legitimate explanation
for the action will be undercut if there is evidence that this reason would also have justified taking the same action against another similarly -situated employee, but the employer declined to
do so. Revised Enforcement Guidance on Recent Developments in Disparate Treatment Theory ,
EEOC Notice No. 915.002 (July 14, 1992). There is no question that the Agency could have removed Peti tioner based on her providing false
or misleading information on her application for, or to renew her security clearance. However, we are not looking at this matter in a vacuum. We cannot say, based on the record before us, that the Agency would have take n the same action, i.e., removal, absent the retaliatory motivation of
Petitioner’s managers, especially S3. According to the record, D1, an Agency attorney advising management on Petitioner’s removal, obtained copies of Petitioner’s Standard Forms 86 from the Office of Personnel Management (OPM) on August 9 and August 10, 2012, pursuant to an
earlier conversation. D1’s actions were not part of a suitability review regarding whether Petitioner should maintain her security clearance. Although clearly the Agency was aware of Petitioner’s conduct at the time S1 issued the proposed removal on August 13, 2012, we do not find it likely that the Agency would have contacted OPM for copies of these forms absent S3’s apparent motive to retaliate against Petitioner, as evidenced by S3’s June 8, email wherein, as
noted by Petitioner, S3 stated that Petitioner “[a]dmits” to filing EEO complaints at other agencies,” as if engaging in protected EEO activity was a negative act to which Petitioner had confessed . In view of the foregoing, we find that the Agency has not satisfied its burden of proof
to avoid providing personal relief.
CONCLUSION
We find that Petitioner’s termination was motivated by reprisal for engaging in protected EEO activity and that the Agency has not demonstrated that it would have terminated her employment in the absence of the impermissible motivating factor. Accordingly, we find that Petitioner is entitled to full, make -whole relief. Therefore, based upon a thorough review of the record, it is
the decision of the Commission to DIFFER with the final decision of the MSPB finding no discrimination with regard to Petitioner ’s claim of discrimination based on retaliation. The
MSPB’s decision erred in its interpretation of the laws, rules, regulations, and policies governing this matter. Petitioner’s reprisal claim will be returned to the MSPB for further processing.
PETIT IONER’S RIGHT TO FILE A CIVIL ACTION (V0610)
Your case is being referred back to the Merit Systems Protection Board for further consideration and the issuance of a new decision. You will have the right to file a civil action in the appropriate United Sta tes District Court, based on the new decision of the Board:
1. Within thirty (30) calendar days of the date that you receive notice of the
decision of the Board to concur in this decision of the Commission; or,
2. If the Board decides to reaffirm its ori ginal decision, within thirty (30) calendar
days of the date you receive notice of the final decision of the Special Panel to
which your case will then be referred.
You may also file a civil action if you have not received a final decision from either the Merit
Systems Protection Board or the Special Panel within one hundred and eighty (180) days of
the date you filed this Petition for Review with the Commission. If you file a civil action, you must name as the defendant in the complaint the person who is the official Agency head or
department head, identifying that person by his or her full name and official title. Failure to do so may result in the dismissal of your case in court. “Agency” or “department” means the national organization, and not the local office, facility or department in which you work.
RIGHT TO REQUEST COUNSEL (Z0815)
If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action wit hout 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 attorne y 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 Ci vil Action for the specific time limits).
FOR THE COMMISSION:
Shelley E. Kahn’s signature
Carlton M. Hadden, Director
Office of Federal Operations
July 5, 2023
Date | [
"Stormy M. v. Dep’t of Def., EEOC Appeal No. 2019003363 (Jan. 22, 2020)",
"In Jazmine F. v. Dep’t of Def. , EEOC Appeal No. 0120162132 (June 22, 2018)",
"Binseel v. Dep't of the Army, EEOC Request No. 05970584 (Oct. 8, 1998)",
"Yubuki v. Dep't of the Army , EEOC Request No. 05920778 (June 4, 1993)",
"Lindse... | [
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0.0015768171288073063,
0.0019639404490590096,
0.013058253563940525,
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0.04027102142572403,
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154 | https://www.eeoc.gov/sites/default/files/migrated_files/decisions/0120122196.txt | 0120122196.txt | TXT | text/plain | 34,143 | Roland Coronado, Complainant, v. Michael B. Donley, Secretary, Department of the Air Force, Agency. | April 30, 2012 | Appeal Number: 0120122196
Background:
At the time of events giving rise to this complaint, Complainant worked as a Carpenter, WG-4607-09, at the 802nd Civil Engineer Squadron, Zone 4, Lackland Air Force Base in Texas.
Believing he was subjected to discrimination based on his disability (diabetes) and in reprisal for his prior protected EEO activity, Complainant initiated contact with an EEO Counselor on June 24, 2010. Thereafter, Complainant filed an EEO complaint dated September 27, 2010, which was subsequently amended, alleging that the Agency discriminated against him when:
1. Supervisor 1 did not allow Complainant to participate in physical training on June 22, 2010, based on his disability (diabetes).
2. Supervisor 1 subjected Complainant to a hostile work environment in reprisal for his prior protected EEO activity when:
a. On September 21, 2010, Supervisor 1 informed Complainant that Person A would no longer be his immediate supervisor;
b. On September 9, 2010, Supervisor 1 issued Complainant a work order requiring him to work alone;
c. On August 13, 2010, Supervisor 1 called Complainant into Person B's office and asked if Complainant said negative things about his supervisor;
d. On August 12, 2010, Supervisor 1 stated to the group of maintenance mechanics, including Complainant, that individuals who file EEO or union complaints "are not men and have no integrity;"
e. On August 11, 2010, Supervisor 1 told Complainant that he had to go to Supervisor 1 before filing either an EEO complaint or union grievance;
f. From June 24, 2010, to the present, Supervisor 1 checks on Complainant twice a day;
g. On July 1, 2010, Supervisor 1 came from the other side of traffic and stopped a foot away from Complainant's vehicle to ask what Complainant was doing; and
h. On June 30, 2010, Supervisor 1 pointed at Complainant in the break room in front of Person A and said "I have a bone to pick with you."1
3. The Agency subjected Complainant to a hostile work environment because of disability (diabetes) and in reprisal for prior protected EEO activity when Complainant did not receive an award with his fully successful annual performance rating in June 2011.
4. The Agency subjected Complainant to a hostile work environment based on his disability (diabetes) and in reprisal for prior EEO activity when Complainant's work schedule was changed from a nine hour day to an eight hour day on August 29, 2011.
5. The Agency subjected Complainant to a hostile work environment because of his disability (diabetes) when:
a. In June 2010, Complainant was told, "Then you will make it eight people working at the site and you can just run around the truck for exercise and that will be your PT;" and
b. In March 2010, Complainant was asked for clarification of his 2006 doctor's note which stated Complainant could not work alone.2
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 and the AJ held a hearing on January 12 - 13, 2012. The AJ issued a decision on February 15, 2012.
In her decision, the AJ found Complainant, who has diabetes and is insulin dependent, was a qualified individual with a disability. The AJ found that Complainant filed a prior EEO complaint on March 9, 2007, and then one on April 17, 2008, against the supervisor who preceded Supervisor 1. The AJ found that Supervisor 1 became Complainant's first-level supervisor in December 2009.
With regard to issue (1), the AJ noted under Agency policy, if employees followed protocol, supervisors could allow employees to use three hours of duty time each week for physical training. The AJ found that for several weeks after June 17, 2010, Supervisor 1 did not allow Complainant to participate in physical training. The AJ noted that at the hearing, Supervisor 1 testified that he prohibited the group, not just Complainant, to participate in physical training for several weeks because they failed to follow protocol in regards to signing in and out as instructed. The AJ found that the record showed that Supervisor 1 allowed two employees, Employee 1 and Employee 2, to participate in physical training during the time Complainant and others in the group were not allowed to participate. The AJ found that with the exception of Employee 1 and Employee 2, Supervisor 1 did not allow anyone else in the group to attend physical training, and thus, that he did not single out Complainant because of his disability.
With regard to issue (2)(a), the AJ found that during mediation, Complainant and the Agency agreed that Person A, rather than Supervisor 1, would be Complainant's supervisor. The AJ noted that according to the agreement reached, Supervisor 1 would assign Complainant work orders, but Person A would actually supervise Complainant. The AJ noted that the evidence showed that Complainant never signed the agreement, and, for this reason, Supervisor 1 remained Complainant's supervisor.
With regard to issue (2)(b), the AJ found that on September 9, 2010, Supervisor 1 issued Complainant a work order that would have required him to work alone on a project. The AJ noted that when Complainant brought it to Supervisor 1's attention that Complainant should not work alone because he might have a diabetic episode, Supervisor 1 found medical documentation from 2007, which recommended, as a precautionary measure, that Complainant work in the presence of another employee. The AJ noted that Complainant claimed that Supervisor 1 should have known of the medical documentation and should have known that Complainant, who had a diabetic episode at the workplace in 2009, should not work alone. However, the AJ did not reach this conclusion. The AJ stated she believed Supervisor 1 when he testified that he did not know of the 2007 recommendation until it was brought to his attention in September 2010. Additionally, the AJ found that Supervisor 1 rescinded the work order and there was no evidence that he ever again issued a work order requiring Complainant work without a partner.
With regard to issue (2)(c), the AJ noted that on August 13, 2010, Complainant was called into Person B's office and met with Person A, Person B, and Supervisor 1. The AJ found that the record showed that while Person A called Complainant into the meeting, Person B was the one who actually arranged the meeting. The AJ found that Person B testified that Supervisor 1 and several of Complainant's co-workers, including Co-worker 1 and Co-worker 2, told him that Complainant, evidently after mediation, told co-workers that he "beat [S1]," and made negative remarks about Supervisor 1. The AJ stated the purpose of Person B's meeting was to put a stop to the comments.
With regard to issues (2)(d) and (2)(e), the AJ noted that Complainant stated that on August 11 and 12, 2010, Supervisor 1 told his subordinates that those who file EEO complaints or union grievances were "not men and had no integrity." The AJ noted Complainant also stated that Supervisor 1 said employees must go through him to go to the EEO Office. The AJ found the record showed that Supervisor 1 told the employees that they were not men and had no integrity if they did not talk to Supervisor 1 before going to the EEO Office, and that Supervisor 1 also told them they must go through him before going to the EEO Office. The AJ noted that while Supervisor 1 had a need to know, for scheduling purposes, if an employee was going to the EEO Office during duty hours, he did not need to know the reason for the employee going to the EEO Office. The AJ found that Supervisor 1's comments were made by him in an effort to discourage the filing of EEO complaints.
With regard to issue (2)(f), the AJ found Complainant's claim that Supervisor 1 checked up on him twice a day after he filed his EEO complaint, was corroborated by the Administrative Assistant working for Supervisor 1's group. The AJ noted that according to the Administrative Assistant, Supervisor 1 constantly checked on Complainant, particularly after Complainant filed the EEO complaint, and Supervisor 1 did not like for employees to file EEO complaints or grievances. The AJ found that Supervisor 1 was irritated that Complainant filed the EEO complaint and that, more than likely, for that reason he frequently checked up on Complainant.
With regard to issue (2)(g), the AJ noted that on July 1, 2010, Supervisor 1, driving a maintenance vehicle, drove toward and stopped dangerously close to an Agency compact truck which Complainant was driving and in which Co-Worker 3 was riding. The AJ found that Supervisor 1 did stop bumper to bumper with the compact truck; however, the AJ did not find that this was done because of a prohibited factor.
With regard to issue (2)(h), the AJ noted that on June 30, 2010, Supervisor 1, in passing Complainant in the break room, pointed his finger at Complainant and said "I have a bone to pick with you." The AJ noted that while it was clear that Supervisor 1 pointed his finger at Complainant and made the statement, the evidence showed that Supervisor 1 did not follow up on the comment with a meeting or indicate the reason he had a "bone to pick" with Complainant. The AJ said that for purposes of her decision, she will assume that Supervisor 1 made the comment because Complainant filed an EEO complaint a few days before the incident.
With regard to issue (3), the AJ noted that while Complainant received a fully successful annual performance rating in June 2011, he did not receive an award. The AJ noted that the evidence showed that the first line supervisor was the recommending official for awards. However, the AJ also noted that if the next level supervisor believed that an employee should receive an award, that level supervisor could make the recommendation. The AJ found there was insufficient evidence to rebut the testimony that Complainant had been on light duty during the rating period, primarily answering telephones, and that neither Supervisor 1 nor Person B believed Complainant merited an award.
With regard to issue (4), the AJ noted that the evidence showed that Person B instructed supervisors to remove all light duty employees from the alternate work schedule. The AJ noted that for this reason, Complainant, who was on light duty, was removed from the alternate work schedule, and required to work eight hours a day, five days a week. The AJ found there was no evidence that Complainant was required to work eight hours a day, five days a week, for a discriminatory reason.
With regard to issue (5)(a), the AJ found the evidence indicated that in June 2010, Supervisor 1 told Complainant to go to the Medina Annex, and Complainant responded that there were already seven employees working on the problem at the Medina Annex. The AJ noted that at that point, Supervisor 1 said "then you will make it eight people and you can just run around the truck for exercise and that will be your PT." The AJ found that the remark had nothing to do with Complainant's disability or EEO activity but was said because Supervisor 1 knew it would irritate Complainant.
With regard to issue (5)(b), Complainant claimed that in March 2010, he was asked for clarification of his 2006 doctor's note which stated he could not work alone. The AJ noted that there was a note in Complainant's medical file, dated September 5, 2007, and signed by a Registered Nurse, which stated, "[Complainant] has recently increased his efforts to improve his diabetes management. He had an episode of hypoglycemia or low blood sugar August 29, 2007, requiring medical assistance. This is expected to be an isolated incident, as his medication has been adjusted to prevent further occurrences. As a precautionary measure, we would recommend that [Complainant] work in the presence of another employee." The AJ did not find the requirement to clarify and update the note to be discriminatory.
The AJ stated she was persuaded that Supervisor 1 tried to dissuade employees from filing EEO complaints by his comments that those who file EEO complaints are not men and have no integrity, and Supervisor 1's wanting to know the reason an employee would go to the EEO office. The AJ also noted the credible evidence showed that Supervisor 1 checked up on Complainant several times a day because Complainant filed an EEO complaint. The AJ concluded that these comments, along with the comment "I have a bone to pick with you," and checking up on Complainant, were not actionable because they were not sufficiently pervasive or severe enough to alter the conditions of Complainant's employment.
The Agency subsequently issued a final order on March 30, 2012. The Agency's final order fully implemented the AJ's finding that Complainant failed to prove that the Agency subjected him to discrimination as alleged.
On appeal, Complainant claims the AJ erred as she failed to analyze the Agency's actions as independent actionable acts of reprisal. Complainant argues the AJ also erred in fragmenting
his hostile work environment claim and failing to consider the Agency's unlawful policy requiring employees to speak with their supervisors prior to contacting EEO.
In response to Complainant's appeal, the Agency argues the AJ's decision finding no discrimination was supported by a preponderance of evidence. Specifically, with regard to issues (2)(d) and (2)(e), the Agency noted that the AJ found that Supervisor 1 told a group of employees that he supervised that those who file EEO complaints without talking to him first are not men and have no integrity. The Agency noted that the AJ found that the statements were made in an effort to discourage the filing of EEO complaints; however, the Agency stated that the AJ found the statements were not directed at Complainant personally and were not made in retaliation for Complainant having filed a complaint. Additionally, with regard to issue (2)(f), the Agency noted the AJ found Supervisor 1 did check on Complainant more frequently after he filed his EEO complaint and that he did so because he was irritated that Complainant had filed one. However, the Agency argues that there was no finding that Supervisor 1 ever took any action against Complainant. The Agency claims that the more frequent supervision was a trivial annoyance and not actionable.
Legal Analysis:
the Commission AFFIRMS in part and REVRSES in part the Agency's final order.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Carpenter, WG-4607-09, at the 802nd Civil Engineer Squadron, Zone 4, Lackland Air Force Base in Texas.
Believing he was subjected to discrimination based on his disability (diabetes) and in reprisal for his prior protected EEO activity, Complainant initiated contact with an EEO Counselor on June 24, 2010. Thereafter, Complainant filed an EEO complaint dated September 27, 2010, which was subsequently amended, alleging that the Agency discriminated against him when:
1. Supervisor 1 did not allow Complainant to participate in physical training on June 22, 2010, based on his disability (diabetes).
2. Supervisor 1 subjected Complainant to a hostile work environment in reprisal for his prior protected EEO activity when:
a. On September 21, 2010, Supervisor 1 informed Complainant that Person A would no longer be his immediate supervisor;
b. On September 9, 2010, Supervisor 1 issued Complainant a work order requiring him to work alone;
c. On August 13, 2010, Supervisor 1 called Complainant into Person B's office and asked if Complainant said negative things about his supervisor;
d. On August 12, 2010, Supervisor 1 stated to the group of maintenance mechanics, including Complainant, that individuals who file EEO or union complaints "are not men and have no integrity;"
e. On August 11, 2010, Supervisor 1 told Complainant that he had to go to Supervisor 1 before filing either an EEO complaint or union grievance;
f. From June 24, 2010, to the present, Supervisor 1 checks on Complainant twice a day;
g. On July 1, 2010, Supervisor 1 came from the other side of traffic and stopped a foot away from Complainant's vehicle to ask what Complainant was doing; and
h. On June 30, 2010, Supervisor 1 pointed at Complainant in the break room in front of Person A and said "I have a bone to pick with you."1
3. The Agency subjected Complainant to a hostile work environment because of disability (diabetes) and in reprisal for prior protected EEO activity when Complainant did not receive an award with his fully successful annual performance rating in June 2011.
4. The Agency subjected Complainant to a hostile work environment based on his disability (diabetes) and in reprisal for prior EEO activity when Complainant's work schedule was changed from a nine hour day to an eight hour day on August 29, 2011.
5. The Agency subjected Complainant to a hostile work environment because of his disability (diabetes) when:
a. In June 2010, Complainant was told, "Then you will make it eight people working at the site and you can just run around the truck for exercise and that will be your PT;" and
b. In March 2010, Complainant was asked for clarification of his 2006 doctor's note which stated Complainant could not work alone.2
At the
Final Decision:
Accordingly, we will not address the AJ's dismissal of these two claims. For purposes of this decision, the Commission assumes without deciding that Complainant is a qualified individual with a disability. We note that Complainant is not alleging that he was denied a reasonable accommodation. After a careful review of the record, the Commission finds that the AJ's findings of fact with regard to issues (1), (2)(a), (2)(b), (2)(c), (2)(g), (2)(h), (3), (5)(a), and (5)(b) are supported by substantial evidence in the record and that the AJ's decision properly summarized the relevant facts and referenced the appropriate regulations, policies, and laws. Additionally, we find substantial evidence supports the AJ's decision that Complainant was not subjected to harassment based on his disability or in reprisal for protected EEO activity. In addition to examining issues (2)(d), (2)(e), and (2)(f) as part of Complainant's overall claim of retaliatory harassment, we find these issues should also be examined individually. Title VII of the Civil Rights Act, the Age Discrimination in Employment Act, and the Rehabilitation Act prohibit an employer from retaliating against an employee for engaging in protected activity. A Complainant can establish a prima facie case of reprisal by presenting facts that, if unexplained, reasonably give rise to an inference of discrimination. Shapiro v. Soc. Sec. Admin., EEOC Request No. 05960403 (Dec. 6, 1996) (citing McDonnell Douglas Corp. v. Green, 411 U.S. 802 (1973)). Specifically, in reprisal, and in accordance with the burdens set forth in McDonnell Douglas and Coffman v. Dep't of Veterans Affairs, EEOC Request No. 05960473 (Nov. 20, 1997), a complainant may establish a prima facie case of reprisal by showing that: (1) complainant engaged in protected activity; (2) the agency was aware of the protected activity; (3) subsequently, complainant was subjected to adverse treatment by the agency; and (4) a nexus exists between the protected activity and the adverse treatment. Whitmire v. Dep't of the Air Force, EEOC Appeal No. 01A00340 (Sept. 25, 2000). A nexus may be shown by evidence that the adverse treatment followed the protected activity within such a period of time and in such manner that a retaliatory motive may be inferred. See Clay v. Dep't of the Treasury, EEOC Appeal No. 01A35231 (Jan. 25, 2005). See Clark County Sch. Dist. v. Breeden, 532 U.S. 268 (2001) (finding that a three-month period was not proximate enough to establish a causal nexus). We note that the Commission has stated that adverse actions need not qualify as "ultimate employment actions" or materially affect the terms and conditions of employment to constitute retaliation. EEOC Compliance Manual, Section 8: Retaliation, No. 915.003, at 8-13 (May 20, 1998); see Burlington N. and Santa Fe Ry. Co. v. White, 548 U.S. 67 (2006) (finding that the anti-retaliation provision protects individuals from a retaliatory action that a reasonable person would have found "materially adverse," which in the retaliation context means that the action might have deterred a reasonable person from opposing discrimination or participating in the EEO process). 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 the present case, the record reveals that on August 10, 2010, Supervisor 1 was contacted via electronic mail by the EEO Counselor and informed that the EEO Counselor would be meeting with Complainant on August 11, 2010. Substantial evidence supports the AJ's finding that on August 11 and 12, 2010, Supervisor 1 told his subordinates that those who file EEO complaints or union grievances without coming to him first were "not men and had no integrity" and that they must go through him before going to the EEO Office. We agree with the AJ that while Supervisor 1 had a need to know, for purposes of scheduling work, if an employee was going to the EEO Office during duty hours, he did not need to know the reason for the employee going to the EEO Office. In the present case, we find that the comments made by Supervisor 1 would deter a reasonable person from opposing discrimination or participating in the EEO process. Given the close proximity, at most a day or two, between the notice from the EEO Counselor that Complainant had an EEO appointment and the statements made by Supervisor 1, we find a nexus exists between the protected activity and the adverse treatment. Moreover, we determine that substantial evidence supports the AJ's finding that Supervisor 1 made these comments in an effort to discourage the filing of EEO complaints and thus, had a retaliatory motive for making these comments. As part of the remedy we shall order the Agency to inform the employees in Complainant's office that they do not need to inform supervisors of their reasons for visiting the EEO office or even get permission to visit the EEO office unless they need to do so for scheduling reasons. With regard to issue (2)(f), Complainant alleged that following his June 24, 2010 initial contact with an EEO Counselor, to the present, Supervisor 1 checked on him twice a day. We find that the record supports the AJ's finding that Supervisor 1 was notified of Complainant's EEO Counselor contact shortly after Complainant contacted the counselor. We note that on appeal, the Agency does not challenge this finding by the AJ. The record reveals that the Administrative Assistant corroborated Complainant's allegation that Supervisor 1 checked on Complainant more frequently after he filed his EEO complaint and testified that she believed that after Complainant filed his EEO complaint, he was subjected to more scrutiny by Supervisor 1. Despite the Agency's argument to the contrary, we find that being checked on twice a day by a supervisor and being subjected to increased scrutiny by a supervisor on a continuing basis is reasonably likely to deter a reasonable person from engaging in protected EEO activity. We find that substantial evidence supports the AJ's finding that Supervisor 1 was irritated that Complainant filed the EEO complaint and that more likely than not, for that reason, he frequently checked up on Complainant. Thus, we find that the incident in claim 2(f) was motivated by retaliation for Complainant's prior protected activity . CONCLUSION Accordingly, the Agency's finding of no discrimination with regard to issues (1), (2)(a), (2)(b), (2)(c), (2)(g), (2)(h), (3), (5)(a), and (5)(b) is AFFIRMED. | Roland Coronado,
Complainant,
v.
Michael B. Donley,
Secretary,
Department of the Air Force,
Agency.
Appeal No. 0120122196
Hearing No. 451-2011-00289X
Agency No. 8Z0J10037
DECISION
On April 30, 2012, Complainant filed an appeal from the Agency's March 30, 2012, final order concerning his equal employment opportunity (EEO) complaint alleging 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 in part and REVRSES in part the Agency's final order.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Carpenter, WG-4607-09, at the 802nd Civil Engineer Squadron, Zone 4, Lackland Air Force Base in Texas.
Believing he was subjected to discrimination based on his disability (diabetes) and in reprisal for his prior protected EEO activity, Complainant initiated contact with an EEO Counselor on June 24, 2010. Thereafter, Complainant filed an EEO complaint dated September 27, 2010, which was subsequently amended, alleging that the Agency discriminated against him when:
1. Supervisor 1 did not allow Complainant to participate in physical training on June 22, 2010, based on his disability (diabetes).
2. Supervisor 1 subjected Complainant to a hostile work environment in reprisal for his prior protected EEO activity when:
a. On September 21, 2010, Supervisor 1 informed Complainant that Person A would no longer be his immediate supervisor;
b. On September 9, 2010, Supervisor 1 issued Complainant a work order requiring him to work alone;
c. On August 13, 2010, Supervisor 1 called Complainant into Person B's office and asked if Complainant said negative things about his supervisor;
d. On August 12, 2010, Supervisor 1 stated to the group of maintenance mechanics, including Complainant, that individuals who file EEO or union complaints "are not men and have no integrity;"
e. On August 11, 2010, Supervisor 1 told Complainant that he had to go to Supervisor 1 before filing either an EEO complaint or union grievance;
f. From June 24, 2010, to the present, Supervisor 1 checks on Complainant twice a day;
g. On July 1, 2010, Supervisor 1 came from the other side of traffic and stopped a foot away from Complainant's vehicle to ask what Complainant was doing; and
h. On June 30, 2010, Supervisor 1 pointed at Complainant in the break room in front of Person A and said "I have a bone to pick with you."1
3. The Agency subjected Complainant to a hostile work environment because of disability (diabetes) and in reprisal for prior protected EEO activity when Complainant did not receive an award with his fully successful annual performance rating in June 2011.
4. The Agency subjected Complainant to a hostile work environment based on his disability (diabetes) and in reprisal for prior EEO activity when Complainant's work schedule was changed from a nine hour day to an eight hour day on August 29, 2011.
5. The Agency subjected Complainant to a hostile work environment because of his disability (diabetes) when:
a. In June 2010, Complainant was told, "Then you will make it eight people working at the site and you can just run around the truck for exercise and that will be your PT;" and
b. In March 2010, Complainant was asked for clarification of his 2006 doctor's note which stated Complainant could not work alone.2
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 and the AJ held a hearing on January 12 - 13, 2012. The AJ issued a decision on February 15, 2012.
In her decision, the AJ found Complainant, who has diabetes and is insulin dependent, was a qualified individual with a disability. The AJ found that Complainant filed a prior EEO complaint on March 9, 2007, and then one on April 17, 2008, against the supervisor who preceded Supervisor 1. The AJ found that Supervisor 1 became Complainant's first-level supervisor in December 2009.
With regard to issue (1), the AJ noted under Agency policy, if employees followed protocol, supervisors could allow employees to use three hours of duty time each week for physical training. The AJ found that for several weeks after June 17, 2010, Supervisor 1 did not allow Complainant to participate in physical training. The AJ noted that at the hearing, Supervisor 1 testified that he prohibited the group, not just Complainant, to participate in physical training for several weeks because they failed to follow protocol in regards to signing in and out as instructed. The AJ found that the record showed that Supervisor 1 allowed two employees, Employee 1 and Employee 2, to participate in physical training during the time Complainant and others in the group were not allowed to participate. The AJ found that with the exception of Employee 1 and Employee 2, Supervisor 1 did not allow anyone else in the group to attend physical training, and thus, that he did not single out Complainant because of his disability.
With regard to issue (2)(a), the AJ found that during mediation, Complainant and the Agency agreed that Person A, rather than Supervisor 1, would be Complainant's supervisor. The AJ noted that according to the agreement reached, Supervisor 1 would assign Complainant work orders, but Person A would actually supervise Complainant. The AJ noted that the evidence showed that Complainant never signed the agreement, and, for this reason, Supervisor 1 remained Complainant's supervisor.
With regard to issue (2)(b), the AJ found that on September 9, 2010, Supervisor 1 issued Complainant a work order that would have required him to work alone on a project. The AJ noted that when Complainant brought it to Supervisor 1's attention that Complainant should not work alone because he might have a diabetic episode, Supervisor 1 found medical documentation from 2007, which recommended, as a precautionary measure, that Complainant work in the presence of another employee. The AJ noted that Complainant claimed that Supervisor 1 should have known of the medical documentation and should have known that Complainant, who had a diabetic episode at the workplace in 2009, should not work alone. However, the AJ did not reach this conclusion. The AJ stated she believed Supervisor 1 when he testified that he did not know of the 2007 recommendation until it was brought to his attention in September 2010. Additionally, the AJ found that Supervisor 1 rescinded the work order and there was no evidence that he ever again issued a work order requiring Complainant work without a partner.
With regard to issue (2)(c), the AJ noted that on August 13, 2010, Complainant was called into Person B's office and met with Person A, Person B, and Supervisor 1. The AJ found that the record showed that while Person A called Complainant into the meeting, Person B was the one who actually arranged the meeting. The AJ found that Person B testified that Supervisor 1 and several of Complainant's co-workers, including Co-worker 1 and Co-worker 2, told him that Complainant, evidently after mediation, told co-workers that he "beat [S1]," and made negative remarks about Supervisor 1. The AJ stated the purpose of Person B's meeting was to put a stop to the comments.
With regard to issues (2)(d) and (2)(e), the AJ noted that Complainant stated that on August 11 and 12, 2010, Supervisor 1 told his subordinates that those who file EEO complaints or union grievances were "not men and had no integrity." The AJ noted Complainant also stated that Supervisor 1 said employees must go through him to go to the EEO Office. The AJ found the record showed that Supervisor 1 told the employees that they were not men and had no integrity if they did not talk to Supervisor 1 before going to the EEO Office, and that Supervisor 1 also told them they must go through him before going to the EEO Office. The AJ noted that while Supervisor 1 had a need to know, for scheduling purposes, if an employee was going to the EEO Office during duty hours, he did not need to know the reason for the employee going to the EEO Office. The AJ found that Supervisor 1's comments were made by him in an effort to discourage the filing of EEO complaints.
With regard to issue (2)(f), the AJ found Complainant's claim that Supervisor 1 checked up on him twice a day after he filed his EEO complaint, was corroborated by the Administrative Assistant working for Supervisor 1's group. The AJ noted that according to the Administrative Assistant, Supervisor 1 constantly checked on Complainant, particularly after Complainant filed the EEO complaint, and Supervisor 1 did not like for employees to file EEO complaints or grievances. The AJ found that Supervisor 1 was irritated that Complainant filed the EEO complaint and that, more than likely, for that reason he frequently checked up on Complainant.
With regard to issue (2)(g), the AJ noted that on July 1, 2010, Supervisor 1, driving a maintenance vehicle, drove toward and stopped dangerously close to an Agency compact truck which Complainant was driving and in which Co-Worker 3 was riding. The AJ found that Supervisor 1 did stop bumper to bumper with the compact truck; however, the AJ did not find that this was done because of a prohibited factor.
With regard to issue (2)(h), the AJ noted that on June 30, 2010, Supervisor 1, in passing Complainant in the break room, pointed his finger at Complainant and said "I have a bone to pick with you." The AJ noted that while it was clear that Supervisor 1 pointed his finger at Complainant and made the statement, the evidence showed that Supervisor 1 did not follow up on the comment with a meeting or indicate the reason he had a "bone to pick" with Complainant. The AJ said that for purposes of her decision, she will assume that Supervisor 1 made the comment because Complainant filed an EEO complaint a few days before the incident.
With regard to issue (3), the AJ noted that while Complainant received a fully successful annual performance rating in June 2011, he did not receive an award. The AJ noted that the evidence showed that the first line supervisor was the recommending official for awards. However, the AJ also noted that if the next level supervisor believed that an employee should receive an award, that level supervisor could make the recommendation. The AJ found there was insufficient evidence to rebut the testimony that Complainant had been on light duty during the rating period, primarily answering telephones, and that neither Supervisor 1 nor Person B believed Complainant merited an award.
With regard to issue (4), the AJ noted that the evidence showed that Person B instructed supervisors to remove all light duty employees from the alternate work schedule. The AJ noted that for this reason, Complainant, who was on light duty, was removed from the alternate work schedule, and required to work eight hours a day, five days a week. The AJ found there was no evidence that Complainant was required to work eight hours a day, five days a week, for a discriminatory reason.
With regard to issue (5)(a), the AJ found the evidence indicated that in June 2010, Supervisor 1 told Complainant to go to the Medina Annex, and Complainant responded that there were already seven employees working on the problem at the Medina Annex. The AJ noted that at that point, Supervisor 1 said "then you will make it eight people and you can just run around the truck for exercise and that will be your PT." The AJ found that the remark had nothing to do with Complainant's disability or EEO activity but was said because Supervisor 1 knew it would irritate Complainant.
With regard to issue (5)(b), Complainant claimed that in March 2010, he was asked for clarification of his 2006 doctor's note which stated he could not work alone. The AJ noted that there was a note in Complainant's medical file, dated September 5, 2007, and signed by a Registered Nurse, which stated, "[Complainant] has recently increased his efforts to improve his diabetes management. He had an episode of hypoglycemia or low blood sugar August 29, 2007, requiring medical assistance. This is expected to be an isolated incident, as his medication has been adjusted to prevent further occurrences. As a precautionary measure, we would recommend that [Complainant] work in the presence of another employee." The AJ did not find the requirement to clarify and update the note to be discriminatory.
The AJ stated she was persuaded that Supervisor 1 tried to dissuade employees from filing EEO complaints by his comments that those who file EEO complaints are not men and have no integrity, and Supervisor 1's wanting to know the reason an employee would go to the EEO office. The AJ also noted the credible evidence showed that Supervisor 1 checked up on Complainant several times a day because Complainant filed an EEO complaint. The AJ concluded that these comments, along with the comment "I have a bone to pick with you," and checking up on Complainant, were not actionable because they were not sufficiently pervasive or severe enough to alter the conditions of Complainant's employment.
The Agency subsequently issued a final order on March 30, 2012. The Agency's final order fully implemented the AJ's finding that Complainant failed to prove that the Agency subjected him to discrimination as alleged.
On appeal, Complainant claims the AJ erred as she failed to analyze the Agency's actions as independent actionable acts of reprisal. Complainant argues the AJ also erred in fragmenting
his hostile work environment claim and failing to consider the Agency's unlawful policy requiring employees to speak with their supervisors prior to contacting EEO.
In response to Complainant's appeal, the Agency argues the AJ's decision finding no discrimination was supported by a preponderance of evidence. Specifically, with regard to issues (2)(d) and (2)(e), the Agency noted that the AJ found that Supervisor 1 told a group of employees that he supervised that those who file EEO complaints without talking to him first are not men and have no integrity. The Agency noted that the AJ found that the statements were made in an effort to discourage the filing of EEO complaints; however, the Agency stated that the AJ found the statements were not directed at Complainant personally and were not made in retaliation for Complainant having filed a complaint. Additionally, with regard to issue (2)(f), the Agency noted the AJ found Supervisor 1 did check on Complainant more frequently after he filed his EEO complaint and that he did so because he was irritated that Complainant had filed one. However, the Agency argues that there was no finding that Supervisor 1 ever took any action against Complainant. The Agency claims that the more frequent supervision was a trivial annoyance and not actionable.
ANALYSIS AND FINDINGS
Pursuant to 29 C.F.R. § 1614.405(a), all post-hearing factual findings by an AJ 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.
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, at § VI.B. (November 9, 1999).
At the outset, we note that although the AJ addressed issue (4) in her decision, this issue was withdrawn by Complainant in his closing statement. Thus, we will not address issue (4) in this decision.
Additionally, we note that Complainant does not challenge the AJ's dismissal of his claims that he was denied overtime in September 18-19, 2010, or his claim that in March 2010, he was moved from the Vertical Shop. The Commission has the discretion to review only those issues specifically raised in an appeal. Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, 9-10 (November 9, 1999). Accordingly, we will not address the AJ's dismissal of these two claims.
For purposes of this decision, the Commission assumes without deciding that Complainant is a qualified individual with a disability. We note that Complainant is not alleging that he was denied a reasonable accommodation.
After a careful review of the record, the Commission finds that the AJ's findings of fact with regard to issues (1), (2)(a), (2)(b), (2)(c), (2)(g), (2)(h), (3), (5)(a), and (5)(b) are supported by substantial evidence in the record and that the AJ's decision properly summarized the relevant facts and referenced the appropriate regulations, policies, and laws. Additionally, we find substantial evidence supports the AJ's decision that Complainant was not subjected to harassment based on his disability or in reprisal for protected EEO activity.
In addition to examining issues (2)(d), (2)(e), and (2)(f) as part of Complainant's overall claim of retaliatory harassment, we find these issues should also be examined individually.
Title VII of the Civil Rights Act, the Age Discrimination in Employment Act, and the Rehabilitation Act prohibit an employer from retaliating against an employee for engaging in protected activity. A Complainant can establish a prima facie case of reprisal by presenting facts that, if unexplained, reasonably give rise to an inference of discrimination. Shapiro v. Soc. Sec. Admin., EEOC Request No. 05960403 (Dec. 6, 1996) (citing McDonnell Douglas Corp. v. Green, 411 U.S. 802 (1973)). Specifically, in reprisal, and in accordance with the burdens set forth in McDonnell Douglas and Coffman v. Dep't of Veterans Affairs, EEOC Request No. 05960473 (Nov. 20, 1997), a complainant may establish a prima facie case of reprisal by showing that: (1) complainant engaged in protected activity; (2) the agency was aware of the protected activity; (3) subsequently, complainant was subjected to adverse treatment by the agency; and (4) a nexus exists between the protected activity and the adverse treatment. Whitmire v. Dep't of the Air Force, EEOC Appeal No. 01A00340 (Sept. 25, 2000). A nexus may be shown by evidence that the adverse treatment followed the protected activity within such a period of time and in such manner that a retaliatory motive may be inferred. See Clay v. Dep't of the Treasury, EEOC Appeal No. 01A35231 (Jan. 25, 2005). See Clark County Sch. Dist. v. Breeden, 532 U.S. 268 (2001) (finding that a three-month period was not proximate enough to establish a causal nexus).
We note that the Commission has stated that adverse actions need not qualify as "ultimate employment actions" or materially affect the terms and conditions of employment to constitute retaliation. EEOC Compliance Manual, Section 8: Retaliation, No. 915.003, at 8-13 (May 20, 1998); see Burlington N. and Santa Fe Ry. Co. v. White, 548 U.S. 67 (2006) (finding that the anti-retaliation provision protects individuals from a retaliatory action that a reasonable person would have found "materially adverse," which in the retaliation context means that the action might have deterred a reasonable person from opposing discrimination or participating in the EEO process). 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 the present case, the record reveals that on August 10, 2010, Supervisor 1 was contacted via electronic mail by the EEO Counselor and informed that the EEO Counselor would be meeting with Complainant on August 11, 2010. Substantial evidence supports the AJ's finding that on August 11 and 12, 2010, Supervisor 1 told his subordinates that those who file EEO complaints or union grievances without coming to him first were "not men and had no integrity" and that they must go through him before going to the EEO Office. We agree with the AJ that while Supervisor 1 had a need to know, for purposes of scheduling work, if an employee was going to the EEO Office during duty hours, he did not need to know the reason for the employee going to the EEO Office. In the present case, we find that the comments made by Supervisor 1 would deter a reasonable person from opposing discrimination or participating in the EEO process. Given the close proximity, at most a day or two, between the notice from the EEO Counselor that Complainant had an EEO appointment and the statements made by Supervisor 1, we find a nexus exists between the protected activity and the adverse treatment. Moreover, we determine that substantial evidence supports the AJ's finding that Supervisor 1 made these comments in an effort to discourage the filing of EEO complaints and thus, had a retaliatory motive for making these comments. As part of the remedy we shall order the Agency to inform the employees in Complainant's office that they do not need to inform supervisors of their reasons for visiting the EEO office or even get permission to visit the EEO office unless they need to do so for scheduling reasons.
With regard to issue (2)(f), Complainant alleged that following his June 24, 2010 initial contact with an EEO Counselor, to the present, Supervisor 1 checked on him twice a day. We find that the record supports the AJ's finding that Supervisor 1 was notified of Complainant's EEO Counselor contact shortly after Complainant contacted the counselor. We note that on appeal, the Agency does not challenge this finding by the AJ. The record reveals that the Administrative Assistant corroborated Complainant's allegation that Supervisor 1 checked on Complainant more frequently after he filed his EEO complaint and testified that she believed that after Complainant filed his EEO complaint, he was subjected to more scrutiny by Supervisor 1. Despite the Agency's argument to the contrary, we find that being checked on twice a day by a supervisor and being subjected to increased scrutiny by a supervisor on a continuing basis is reasonably likely to deter a reasonable person from engaging in protected EEO activity. We find that substantial evidence supports the AJ's finding that Supervisor 1 was irritated that Complainant filed the EEO complaint and that more likely than not, for that reason, he frequently checked up on Complainant. Thus, we find that the incident in claim 2(f) was motivated by retaliation for Complainant's prior protected activity .
CONCLUSION
Accordingly, the Agency's finding of no discrimination with regard to issues (1), (2)(a), (2)(b), (2)(c), (2)(g), (2)(h), (3), (5)(a), and (5)(b) is AFFIRMED. The Agency's finding of no discrimination with regard to issues (2)(d), (2)(e), and (2)(f) is REVERSED and we REMAND the matter to the Agency for compliance with the Order herein.
ORDER
The Agency shall take the following actions:
1. Within 60 days of the date this decision becomes final, the Agency shall conduct a supplemental investigation to determine whether Complainant is entitled to compensatory damages incurred as a result of the Agency's discriminatory action. The Agency shall allow complainant to present evidence in support of his compensatory damages claim. See Carle v. Dep't of the Navy, EEOC Appeal No. 01922369 (January 5, 1993). Complainant shall cooperate with the Agency in this regard. The Agency shall issue a final decision addressing the issues of compensatory damages no later than 60 days after the Agency's receipt of all information. The Agency shall submit a copy of the final decision to the Compliance Officer at the address set forth herein.
2. Within 180 days of the date this decision becomes final, the Agency shall provide training to the responsible management officials regarding the obligation not to 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 under, the Federal equal employment opportunity laws.
3. Within 60 days of the date this decision becomes final, the Agency shall consider taking disciplinary action against the management officials identified as being responsible for the discrimination perpetrated against Complainant. The Commission does not consider training to be a disciplinary action. The Agency shall report its decision to the Commission and specify what, if any, action was taken. If the Agency decides not to take disciplinary action, then it shall set forth the reasons for its decision not to impose discipline.
4. Within 30 days of the date this decision becomes final, the Agency shall, in writing, inform the employees in Complainant's office that they do not need to inform supervisors of their reasons for visiting the EEO office or even get permission to visit the EEO office unless they need to do so for scheduling reasons.
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 evidence that the corrective action has been implemented.
POSTING ORDER (G0610)
The Agency is ordered to post at its Lackland Air Force Base facility in Texas 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 (H0610)
If Complainant has been represented by an attorney (as defined by 29 C.F.R. § 1614.501(e)(1)(iii)), he/she is entitled to an award of reasonable attorney's fees incurred in the processing of the complaint. 29 C.F.R. § 1614.501(e). The award of attorney's fees shall be paid by the Agency. The attorney shall submit a verified statement of fees to the Agency -- not to the Equal Employment Opportunity Commission, Office of Federal Operations -- within thirty (30) calendar days of this decision becoming final. The Agency shall then process the claim for attorney's fees in accordance with 29 C.F.R. § 1614.501.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0610)
Compliance with the Commission's corrective action is mandatory. The Agency shall submit its compliance report within thirty (30) calendar days of the completion of all ordered corrective action. The report shall be submitted to the Compliance Officer, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC 20013. The Agency's report must contain supporting documentation, and the Agency must send a copy of all submissions to the Complainant. If the Agency does not comply with the Commission's order, the Complainant may petition the Commission for enforcement of the order. 29 C.F.R. § 1614.503(a). The Complainant also has the right to file a civil action to enforce compliance with the Commission's order prior to or following an administrative petition for enforcement. See 29 C.F.R. §§ 1614.407, 1614.408, and 29 C.F.R. § 1614.503(g). Alternatively, the Complainant has the right to file a civil action on the underlying complaint in accordance with the paragraph below entitled "Right to File a Civil Action." 29 C.F.R. §§ 1614.407 and 1614.408. A civil action for enforcement or a civil action on the underlying complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c) (1994 & Supp. IV 1999). If the Complainant files a civil action, the administrative processing of the complaint, including any petition for enforcement, will be terminated. See 29 C.F.R. § 1614.409.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
The Commission may, in its discretion, reconsider the decision in this case if the Complainant or the Agency submits a written request containing arguments or evidence which tend to establish that:
1. The appellate decision involved a clearly erroneous interpretation of material fact or law; or
2. The appellate decision will have a substantial impact on the policies, practices, or operations of the Agency.
Requests to reconsider, with supporting statement or brief, must be filed with the Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision or within twenty (20) calendar days of receipt of another party's timely request for reconsideration. See 29 C.F.R. § 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at 9-18 (November 9, 1999). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC 20013. In the absence of a legible postmark, the request to reconsider shall be deemed timely filed if it is received by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. The request or opposition must also include proof of service on the other party.
Failure to file within the time period will result in dismissal of your request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted with your request for reconsideration. The Commission will consider requests for reconsideration filed after the deadline only in very limited circumstances. See 29 C.F.R. § 1614.604(c).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (T0610)
This decision affirms the Agency's final decision/action in part, but it also requires the Agency to continue its administrative processing of a portion of your complaint. You have the right to file a civil action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision on both that portion of your complaint which the Commission has affirmed and that portion of the complaint which has been remanded for continued administrative processing. In the alternative, you may file a civil action after one hundred and eighty (180) calendar days of the date you filed your complaint with the Agency, or your appeal with the Commission, until such time as the Agency issues its final decision on your complaint. If you file a civil action, you must name as the defendant in the complaint the person who is the official Agency head or department head, identifying that person by his or her full name and official title. Failure to do so may result in the dismissal of your case in court. "Agency" or "department" means the national organization, and not the local office, facility or department in which you work. If you file a request to reconsider and also file a civil action, filing a civil action will terminate the administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z0610)
If you decide to file a civil action, and if you do not have or cannot afford the services of an attorney, you may request from the Court that the Court appoint an attorney to represent you and that the Court also permit you to file the action without payment of fees, costs, or other security. See Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq.; the Rehabilitation Act of 1973, as amended, 29 U.S.C. §§ 791, 794(c). The grant or denial of the request is within the sole discretion of the Court. Filing a request for an attorney with the Court does not extend your time in which to file a civil action. Both the request and the civil action must be filed within the time limits as stated in the paragraph above ("Right to File a Civil Action").
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
October 24, 2012
__________________
Date
1 Complainant's claim of harassment based on reprisal initially included an additional claim that Complainant was denied overtime on September 18 - 19, 2010. At the hearing, an Administrative Judge (AJ) determined this issue was not appropriate for hearing.
2 Complainant's claim of harassment based on disability initially included an additional claim that in March 2010, Complainant was moved from the Vertical Shop. The Agency dismissed this claim for untimely EEO Counselor contact and the AJ upheld the Agency's dismissal.
------------------------------------------------------------
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155 | https://www.eeoc.gov/sites/default/files/migrated_files/decisions/0120181345.pdf | 0120181345.pdf | PDF | application/pdf | 14,701 | Joshua F.,1 Complainant, v. Sonny Perdue, Secretary, Department of Agriculture (Office of the Chief Financial Officer), Agency. | March 5, 2018 | Appeal Number: 0120181345
Background:
Complainant worked as an EEO Specialist, GS -0260-13, at the National Finance Center (NFC) in
New Orleans, Louisiana. On July 11, 2017, Complainant filed an EEO complaint in which he alleged that the Agency subjected him to discrimination and a hostile work environment on the
bases of race (African -American ), sex (male), and in reprisal for prior protected EEO activity when
on May 19, 2017, he learned that a white female would be named as Acting EEO Chief instead of
him, effective May 28, 2017. Complainant identified the Agency’s Acting Deputy Director, his
second -line supervisor (S2), and the Director, his third- line supervisor (S3), as the responsible
management officials.
Following the investigation, the Agency provided Complainant with a copy of the investigative
report (IR) and notice of his right to r equest a hearing before an E EOC Administrative Judge (AJ).
When Complainant did not request a hearing within the time frame provided 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 conclude d that Complainant failed to prove that the Agency subjected him to
discrimination as alleged.
According to S2 and S3, the EEO Chief retired on January 26, 2017. Because there had been a
change of administration the previous week, the Agency was under a hiring freeze. Consequently,
it could not fill the EEO Chief vacancy. In response, S1 decided to appoint the two senior EEO specialists, Complainant and his colleague (CW) to serve consecutive 120- day details with the
expectation that at the conclusion of those details, the hiring freeze would be lifted. CW was appointed firs t because he was the most senior GS -13 in the NFC. Management expected that he
would serve until May 2017, at which point Complainant would take over.
Just before CW’s detail ex pired, the Human Resources Chief, a GS -15, approached S2 and asked
if she could be temporarily detailed to the EEO Chief position until such time as the Agency offered a voluntary early retirement incentive. S2, who also managed the Human Resources office ,
was aware of perceived tensions in the Human Resources office and agreed to have the Human
Resources Chief serve temporarily in the EEO Chief position to alleviate some of the personnel
issues in that office. S2 agreed to the arrangement with the unders tanding that the Human
Resources Chief would vacate the EEO Chief position as soon as the early retirement offer was made. S2 informed the staff during a teleconference held on May 19, 2017, that at the conclusion
of CW’s detail, the Human Resources Chief would be detailed as EEO Chief effective May 28,
2017. The Human Resources C hief had an extensive background in EEO matters, including a stint
as an EEO Manager at another agency. In June 2017, S2 learned that the voluntary early retirement
incentive wo uld not be offered. Consequently, he informed the Human Resources Chief that she
would have to return to her prior position. She did, and Complainant was appointed to the EEO Chief detail on July 23, 2017. IR 71, 73, 77- 79, 87 -90, 96, 99, 107- 09, 114 .
Legal Analysis:
the Commission AFFIRMS the Agency’s final decision.
BACKGROUND
Complainant worked as an EEO Specialist, GS -0260-13, at the National Finance Center (NFC) in
New Orleans, Louisiana. On July 11, 2017, Complainant filed an EEO complaint in which he alleged that the Agency subjected him to discrimination and a hostile work environment on the
bases of race (African -American ), sex (male), and in reprisal for prior protected EEO activity when
on May 19, 2017, he learned that a white female would be named as Acting EEO Chief instead of
him, effective May 28, 2017. Complainant identified the Agency’s Acting Deputy Director, his
second -line supervisor (S2), and the Director, his third- line supervisor (S3), as the responsible
management officials.
Following the investigation, the Agency provided Complainant with a copy of the investigative
report (IR) and notice of his right to r equest a hearing before an E EOC Administrative Judge (AJ).
When Complainant did not request a hearing within the time frame provided 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 conclude d that Complainant failed to prove that the Agency subjected him to
discrimination as alleged.
According to S2 and S3, the EEO Chief retired on January 26, 2017. Because there had been a
change of administration the previous week, the Agency was under a hiring freeze. Consequently,
it could not fill the EEO Chief vacancy. In response, S1 decided to appoint the two senior EEO specialists, Complainant and his colleague (CW) to serve consecutive 120- day details with the
expectation that at the | Joshua F.,1
Complainant,
v.
Sonny Perdue,
Secretary,
Department of Agriculture
(Office of the Chief Financial Officer),
Agency.
Appeal No. 0120181345
Agency No. OCFO- CF-2017-00688
DECISION
On March 5, 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 February 10, 2018 final decision concerning his equal employment opportunity (EEO) complaint alleging employment discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title
VII), as amended, 42 U.S.C. § 2000e et seq. For the following reasons, the Commission AFFIRMS the Agency’s final decision.
BACKGROUND
Complainant worked as an EEO Specialist, GS -0260-13, at the National Finance Center (NFC) in
New Orleans, Louisiana. On July 11, 2017, Complainant filed an EEO complaint in which he alleged that the Agency subjected him to discrimination and a hostile work environment on the
bases of race (African -American ), sex (male), and in reprisal for prior protected EEO activity when
on May 19, 2017, he learned that a white female would be named as Acting EEO Chief instead of
him, effective May 28, 2017. Complainant identified the Agency’s Acting Deputy Director, his
second -line supervisor (S2), and the Director, his third- line supervisor (S3), as the responsible
management officials.
Following the investigation, the Agency provided Complainant with a copy of the investigative
report (IR) and notice of his right to r equest a hearing before an E EOC Administrative Judge (AJ).
When Complainant did not request a hearing within the time frame provided 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 conclude d that Complainant failed to prove that the Agency subjected him to
discrimination as alleged.
According to S2 and S3, the EEO Chief retired on January 26, 2017. Because there had been a
change of administration the previous week, the Agency was under a hiring freeze. Consequently,
it could not fill the EEO Chief vacancy. In response, S1 decided to appoint the two senior EEO specialists, Complainant and his colleague (CW) to serve consecutive 120- day details with the
expectation that at the conclusion of those details, the hiring freeze would be lifted. CW was appointed firs t because he was the most senior GS -13 in the NFC. Management expected that he
would serve until May 2017, at which point Complainant would take over.
Just before CW’s detail ex pired, the Human Resources Chief, a GS -15, approached S2 and asked
if she could be temporarily detailed to the EEO Chief position until such time as the Agency offered a voluntary early retirement incentive. S2, who also managed the Human Resources office ,
was aware of perceived tensions in the Human Resources office and agreed to have the Human
Resources Chief serve temporarily in the EEO Chief position to alleviate some of the personnel
issues in that office. S2 agreed to the arrangement with the unders tanding that the Human
Resources Chief would vacate the EEO Chief position as soon as the early retirement offer was made. S2 informed the staff during a teleconference held on May 19, 2017, that at the conclusion
of CW’s detail, the Human Resources Chief would be detailed as EEO Chief effective May 28,
2017. The Human Resources C hief had an extensive background in EEO matters, including a stint
as an EEO Manager at another agency. In June 2017, S2 learned that the voluntary early retirement
incentive wo uld not be offered. Consequently, he informed the Human Resources Chief that she
would have to return to her prior position. She did, and Complainant was appointed to the EEO Chief detail on July 23, 2017. IR 71, 73, 77- 79, 87 -90, 96, 99, 107- 09, 114 .
ANALYSIS AND FINDINGS
Standard of Review
As this is an appeal from a decision issued without a hearing, pursuant to 29 C.F.R. § 1614.110(b), the Agency's decision is subject to de novo review by the Commission. 29 C.F.R. § 1614.405(a).
See
Equal Employm ent 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 th e
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”).
Disparate Treatment
To prevail in a disparate treatment claim such as this, Complainant must satisfy the three -part
evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green , 411
U.S. 792, 802 (1973). His first step would generally be to establish a prima facie case by demonstrating that he was subjected to an adverse employment action under circumstances that would support an inference of discrimination.
Furnco Const. Corp . v. Waters , 438 U.S. 567, 576
(1978). The prima facie inquiry may be dispensed in this case, however, since S 2 and S 3
articulated legitimate and nondiscriminatory reason s for appointing the Human Resources Chief
to the Acting EEO Chief detail. See U.S. Postal Service Bd. of Governors v. Aikens , 460 U.S.
711, 713- 17 (1983). Namely, while the original plan was for Complainant to serve in the EEO
Chief detail assignment following CW ’s 120- day detail , management granted the Human
Resources Chief request to serve in position after CW to resolve ongoing tensions in the Human
Resources office. Management granted the request with the understanding that the Human
Resources Chief would accept any imminent voluntary early retirement offer. Furthermore, the
Human Resources Chief was a GS -15 and had an extensive EEO background. When management
learned that the retirement incentive would not be immediately offered, the Human Resources Chief returned to her pr ior position and Complainant was appointed to the EEO Chief temporary
detail assignment.
To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the explanation provided by S2 and S3 is a pretext for discrimination.
Reeves v. Sanderson Plumbing
Prods., Inc. , 530 U.S. 133 (2000); St. Mary's Hon. Ctr. v. Hicks , 509 U.S. 502, 519 (1993). Pretext
can be demonstrated by showing such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the Agency's proffered legitimate reasons for its action that a reasonable fact finder could rationa lly find them unworthy of credence.
Opare- Addo v. U.S. Postal
Serv. , EEOC Appeal No. 0120060802 (Nov. 20, 2007), req. for recon. den. EEOC Request No.
0520080211 (May 30, 2008).
When asked why he believed that S2 harbored unlawful animus toward him conce rning his race,
sex, and prior EEO activity in not appointing him to the Acting EEO Chief detail in May 2017, he replied that it was because he was the only one who had previously filed EEO complaints and
because it was much easier to have a female in the position than a black male. IR 79- 80.
Complainant also pointed out that he had over 17 years of experience in EEO. IR 71.
The Commission notes that agencies have broad discretion to fill vacancies as long as selections
are not based on unlawful consi derations. Lashawna L. v. Evtl. Prot. Agency
, EEOC Appeal No.
2019000124 (Mar . 8, 2019). They may select candidates with fewer years of experience if they
believe that such candidates are best qualified to meet the needs of the organization. Barney G. v.
Dep’t of Agric. , EEOC Appeal No. 0120172111 (Nov. 29, 2018). They may even preselect a
candidate as long as the preselection is not premised upon a prohibited basis. Michael R. v. Dep’t
of Agric. , EEOC Appeal No. 0120172112 (Nov. 29, 2018). The Commi ssion cannot second- guess
such personnel decisions unless there is evidence of a discriminatory motivation on the part of the
officials responsible for making those decisions. Tex. Dep’t of Cmty. Affairs v. Burdine , 450 U.S.
248, 259 (1981).
Here there is no question that both Complainant and the Human Resources Chief were eminently
qualified to serve as Acting EEO Chief. Complainant was understandably upset when S2 changed his mind and appointed the Human Resources Chief to serve in the detail instead. But as soon as it became clear that the early retirement incentive would not be forthcoming, S2 arranged for the Human Resources Chief to be returned to her previous position and for Complainant to be appointed to the Acting EEO Chief detail. Complaina nt has presented neither affidavits,
declarations, or unsworn statements from witnesses other than himself nor documents that contradict or undercut the explanations provided by S2 and S3 or which undermine their veracity as witnesses. We therefore find s upport for the Agency’s conclusion that Complainant has not
presented evidence sufficient to establish the existence of a discriminatory or retaliatory motivation on the part of S2 or S3 in not appointing Complainant to serve as Acting EEO Chief in May 2017. Accordingly, we find that Complainant had not demonstrated that he was subjected to discrimination or reprisal as alleged.
Harassment
To the extent that Complainant is alleging that he was subjected to a discriminatory and retaliatory hostile work environment , we find that under the standards set forth in
Harris v. Forklift Systems,
Inc., 510 U.S. 17 (1993) that Complainant's claim of a hostile work environment must fail. See
Enforcement Guidance on Harris v. Forklift Systems, Inc ., EEOC Notice No. 915.002 (Mar. 8,
1994). A finding of a hostile work environment is precluded by our determination that
Complainant failed to establish that Agency management officials were motivated by
discriminatory or retaliatory animus . See Oakley v. U.S. Postal Serv. , EEOC Appeal No.
01982923 (Sept. 21, 2000).
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, we AFFIRM the Agency’s
final decision.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0617)
The Commission may, in its discretion, reconsider the decision in this case if the Complainant or
the Agency submits a written request containing arguments or evidence which tend to establish that:
1. The appellate decision involved a clearly erroneous interpretation of materi al 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 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
June 7, 2019
Date | [
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"Lashawna L. v. Evtl. Prot. Agency , EEOC Appeal No. 2019000124 (Mar . 8, 2019)",
"Barney G. v. Dep’t of Agric. , EEOC Appeal No. 0120172111 (Nov. 29, 2018)",
"Michael R. v. Dep’t of Agric. , EEOC Appeal No. 0120172112 (Nov. 29, 2018)",
... | [
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156 | https://www.eeoc.gov/sites/default/files/decisions/2024_11_15/2024002905.pdf | 2024002905.pdf | PDF | application/pdf | 14,461 | Sylvester D .,1 Complainant, v. Lloyd J. Austin III, Secretary, Department of Defense (National Geospatial -Intelligence Agency), Agency. | March 27, 2024 | Appeal Number: 2024002905
Background:
At the time of events giving rise to this complaint, Complainant worked as a n Inform ation
Technology Operations Engineer , and he identified his work address as the Agency’s facility in
Springfield, Virginia. Complainant initially contacted an EEO Counselor on January 2, 2024.
On February 14, 2024, Complainant filed a formal complaint al leging discrimination in reprisal
for prior EEO activity when:
1. On August 29, 2023, Complainant received a non -selection notice for Technical
Executive, EUCOM (position 9710534); and
2. On October 25, 2023, Complainant received a non -selection notice for Tech nical
Executive, AFRICOM (position 9501074).2
Complainant previously contacted an EEO counselor on August 30, 2023, and submitted a
signed form to the counselor regarding his non- selection for the vacancy which is the subject of
claim 1 in the present case. Complainant stated on the form that he had an active EEO complaint
against Deputy Chief, who Complainant stated was on the selection panel for vacancy number
9710534. Complainant wrote, “I claim [Deputy Chief] retaliated against me by provi ding
negative feedback on me to the panel members, influencing the selection process that prevented accurate and neutral assessment of my knowledge, skills, and abilities by the panel that resulted
in non- selection for this position. These members will likely be on future selection committees
where I am an applicant. I claim this retaliation will cause these panel members to have a negative bias against me, and this negative bias will influence the future committees. When this occurs, my future applicati on packages will be viewed as less competitive, will hinder my career
at [the Agency] , and prevent selection for career -growth and promotion opportunities of which I
am qualified.” Report of Investigation (ROI) at page 4 2.
The record shows that Complai nant withdrew the complaint related to the initial EEO counselor
contact made on August 30, 2023, by submitting a signed form on September 18, 2023. The relevant EEO counselor emailed Complainant the following on September 14, 2023, “I explained the EEO process, the Basis for filing, and the timelines. After gaining a better understanding of
the timelines, more specifically, the term that states you have, you must contact an EEO
Counselor within 45 days from when you first became aware of the potential discriminatory
action. You have decided to withdraw your complaint and wait for the results of your [Freedom of Information Act (FOIA)] request. Please note: This action will not affect your right to pursue other matters covered by 29 CFR 1614. You still retain the right to enter the EEO complaint process for future matters. If you want to file an EEO discrimination complaint in the future, you must contact an EEO Counselor within 45 days from when you first become aware of the potential discriminatory action. Please concur this summarized our conversation today and sign and return the attached withdrawal form. ” ROI at page 43.
On March 27, 2024, the Agency dismissed claims 1 and 2 pursuant to 29 C.F.R. §1614.107(a)(2) for untimely contact with an EEO counselor , noting that Complainant’s initial contact was on
January 2, 2024, which was beyond the 45- day limit for each event. The Agency also dismissed
claim 1 pursuant to 29 C.F.R. § 1614.107(a)(1). The Agency reasoned that Complainant had knowingly and voluntarily withdrawn the matter alleged in claim 1 on September 18, 2023, and that Complainant may not reactiv ate the EEO process on the same issue.
2 We note that additional claims have been held in abeyance by the Agency because the Agency
states they are part of a class complaint that is currently pending. Complainant does not contest the holding of these claims in abeyance and we shall not therefore address those claims in this decision.
The instant appeal followed.
CONTENTIONS ON APPEAL
First, Complainant contends that he became aware of the discrimination on December 26, 2023, when he received the results of a FOIA request related to claim 1. Second, Complainant states
that the EEO counselor advised him that “the time -limit for filing discriminatory action begins
when he becomes ‘aware’ a discriminatory act was committed.” Complainant contends that, based on this advice, he did not become awar e that a discriminatory act was committed until he
received the results of the FOIA request that reasonably indicated discriminatory action occurred. The Agency submits no brief on appeal.
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 t he record and its interpretation of the law. The Commission should construe
the complaint in the light most favorable to the complainant and take the complaint’s allegations as true. Thus, all reasonable inferences that may be drawn from the complaint’s allegations must
be made in favor of the complainant.
Legal Analysis:
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 t he record and its interpretation of the law. The Commission should construe
the complaint in the light most favorable to the complainant and take the complaint’s allegations as true. 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 be brought to the attention of the Equal Employment Opportunity Counselor within 45 days of the date of t he matter alleged to be discriminatory or, in the case of personnel action, within 45 days
of the effective date of the action. The Commission has adopted a “reasonable suspicion” standard (as opposed to a “supportive facts” standard) to determine when the 45- day limitation
period is triggered. See Howard v. Dep’t of the Navy, EEOC Request No. 05970852 (Feb. 11,
1999). Thus, the time limitation is not triggered until a Complainant reasonably suspects discrimination, but before all the facts that support a charge of discrimination have become
apparent.
We find that the Agency properly dismissed claims 1 and 2 for untimely EEO counselor contact. Regarding claim 1, we find that the record supports that Complainant had a reasonable suspicion
of a discriminatory action as of August 30, 2023. Specifically, Complainant initiated contact with an EEO counselor, where he indicated that he knew that Deputy Chief participated on a
selection panel, and he expressed a belief that Deputy Chief retaliated against him by providing
negative information related to his candidacy. The FOIA request that is the subject of
Complainant’s first contention reflects data that are claimed supportive facts rather than what
was required to create reasonable suspicion.
Furthermore, the record does not support Complainant’s second contention. Rather, the prior
EEO counselor’s email dated September 14, 2023, shows that the EEO counselor notified
Complainant of the appropriate time limits. Complai nant’s reasonable suspicion of a
discriminatory act, developed by at least August 30, 2023, triggered the time limitation and
Complainant had 45 days to contact a counselor. Complainant’s initial EEO contact related to
the present case occurred on January 2, 2024, which was well beyond the 45- day time limit. We
note that Complainant had prior contact with an EEO counselor on August 30, 2023 ; however,
he ultimately withdrew the claim associated with that contact . The Commission has stated that
once a complainant has withdrawn an informal complaint, absent a showing of coercion, a complainant may not reactivate the EEO process filing a formal complaint on the same issue. See Allen v. Dep’t of Defense, EEOC Request No. 05940168 (May 25, 1995). The record does
not support a finding of such coercion.
Final Decision:
Accordingly, dismissal of claim 1 for untimely EEO counselor contact , and for previously abandoning claim 1, was appropriate. Regarding claim 2, we find the record supports that Complainant had reasonable suspicion of a discriminatory action as of his receipt of the notice of non- selection on October 25, 2023. As of that date, Complainant knew of the personnel action, and he had the suspicion that Deputy Chief had engaged in reprisal for Complainant’s prior EEO activity, allegedly poisoning the well of selection panel members. As noted under the discussion of claim 1, the FOIA result represent s claimed supportive facts rather than data required to create the reason able suspicion. Complainant’s initial contact with the EEO counselor on January 2, 2024, was beyond the 45-day limitation from October 25, 2023. As such, dismissal of claim 2 for untimely EEO counselor contact was appropriate. CONCLUSION Accordingly, the Agency’s final decision dismissing the complaint is AFFIRMED. | Sylvester D .,1
Complainant,
v.
Lloyd J. Austin III,
Secretary,
Department of Defense
(National Geospatial -Intelligence Agency),
Agency.
Appeal No. 2024002905
Agency No. NGA-0025-2024
DECISION
Complainant filed a n appeal with the Equal Employment Opportunity Commission (EEOC or
Commission) from the Agency's decision dated March 27, 2024, 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. For the following reasons, we AFFIRM the
Agency’s final decision.
ISSUE PRESENTED
The issue presented is whether the Agency properly dismissed the complaint pursuant to 29 C.F.R. § 1614.107(a)(2) for untimely contact with an EEO counselor.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a n Inform ation
Technology Operations Engineer , and he identified his work address as the Agency’s facility in
Springfield, Virginia. Complainant initially contacted an EEO Counselor on January 2, 2024.
On February 14, 2024, Complainant filed a formal complaint al leging discrimination in reprisal
for prior EEO activity when:
1. On August 29, 2023, Complainant received a non -selection notice for Technical
Executive, EUCOM (position 9710534); and
2. On October 25, 2023, Complainant received a non -selection notice for Tech nical
Executive, AFRICOM (position 9501074).2
Complainant previously contacted an EEO counselor on August 30, 2023, and submitted a
signed form to the counselor regarding his non- selection for the vacancy which is the subject of
claim 1 in the present case. Complainant stated on the form that he had an active EEO complaint
against Deputy Chief, who Complainant stated was on the selection panel for vacancy number
9710534. Complainant wrote, “I claim [Deputy Chief] retaliated against me by provi ding
negative feedback on me to the panel members, influencing the selection process that prevented accurate and neutral assessment of my knowledge, skills, and abilities by the panel that resulted
in non- selection for this position. These members will likely be on future selection committees
where I am an applicant. I claim this retaliation will cause these panel members to have a negative bias against me, and this negative bias will influence the future committees. When this occurs, my future applicati on packages will be viewed as less competitive, will hinder my career
at [the Agency] , and prevent selection for career -growth and promotion opportunities of which I
am qualified.” Report of Investigation (ROI) at page 4 2.
The record shows that Complai nant withdrew the complaint related to the initial EEO counselor
contact made on August 30, 2023, by submitting a signed form on September 18, 2023. The relevant EEO counselor emailed Complainant the following on September 14, 2023, “I explained the EEO process, the Basis for filing, and the timelines. After gaining a better understanding of
the timelines, more specifically, the term that states you have, you must contact an EEO
Counselor within 45 days from when you first became aware of the potential discriminatory
action. You have decided to withdraw your complaint and wait for the results of your [Freedom of Information Act (FOIA)] request. Please note: This action will not affect your right to pursue other matters covered by 29 CFR 1614. You still retain the right to enter the EEO complaint process for future matters. If you want to file an EEO discrimination complaint in the future, you must contact an EEO Counselor within 45 days from when you first become aware of the potential discriminatory action. Please concur this summarized our conversation today and sign and return the attached withdrawal form. ” ROI at page 43.
On March 27, 2024, the Agency dismissed claims 1 and 2 pursuant to 29 C.F.R. §1614.107(a)(2) for untimely contact with an EEO counselor , noting that Complainant’s initial contact was on
January 2, 2024, which was beyond the 45- day limit for each event. The Agency also dismissed
claim 1 pursuant to 29 C.F.R. § 1614.107(a)(1). The Agency reasoned that Complainant had knowingly and voluntarily withdrawn the matter alleged in claim 1 on September 18, 2023, and that Complainant may not reactiv ate the EEO process on the same issue.
2 We note that additional claims have been held in abeyance by the Agency because the Agency
states they are part of a class complaint that is currently pending. Complainant does not contest the holding of these claims in abeyance and we shall not therefore address those claims in this decision.
The instant appeal followed.
CONTENTIONS ON APPEAL
First, Complainant contends that he became aware of the discrimination on December 26, 2023, when he received the results of a FOIA request related to claim 1. Second, Complainant states
that the EEO counselor advised him that “the time -limit for filing discriminatory action begins
when he becomes ‘aware’ a discriminatory act was committed.” Complainant contends that, based on this advice, he did not become awar e that a discriminatory act was committed until he
received the results of the FOIA request that reasonably indicated discriminatory action occurred. The Agency submits no brief on appeal.
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 t he record and its interpretation of the law. The Commission should construe
the complaint in the light most favorable to the complainant and take the complaint’s allegations as true. 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 be brought to the attention of the Equal Employment Opportunity Counselor within 45 days of the date of t he matter alleged to be discriminatory or, in the case of personnel action, within 45 days
of the effective date of the action. The Commission has adopted a “reasonable suspicion” standard (as opposed to a “supportive facts” standard) to determine when the 45- day limitation
period is triggered. See Howard v. Dep’t of the Navy, EEOC Request No. 05970852 (Feb. 11,
1999). Thus, the time limitation is not triggered until a Complainant reasonably suspects discrimination, but before all the facts that support a charge of discrimination have become
apparent.
We find that the Agency properly dismissed claims 1 and 2 for untimely EEO counselor contact. Regarding claim 1, we find that the record supports that Complainant had a reasonable suspicion
of a discriminatory action as of August 30, 2023. Specifically, Complainant initiated contact with an EEO counselor, where he indicated that he knew that Deputy Chief participated on a
selection panel, and he expressed a belief that Deputy Chief retaliated against him by providing
negative information related to his candidacy. The FOIA request that is the subject of
Complainant’s first contention reflects data that are claimed supportive facts rather than what
was required to create reasonable suspicion.
Furthermore, the record does not support Complainant’s second contention. Rather, the prior
EEO counselor’s email dated September 14, 2023, shows that the EEO counselor notified
Complainant of the appropriate time limits. Complai nant’s reasonable suspicion of a
discriminatory act, developed by at least August 30, 2023, triggered the time limitation and
Complainant had 45 days to contact a counselor. Complainant’s initial EEO contact related to
the present case occurred on January 2, 2024, which was well beyond the 45- day time limit. We
note that Complainant had prior contact with an EEO counselor on August 30, 2023 ; however,
he ultimately withdrew the claim associated with that contact . The Commission has stated that
once a complainant has withdrawn an informal complaint, absent a showing of coercion, a complainant may not reactivate the EEO process filing a formal complaint on the same issue. See Allen v. Dep’t of Defense, EEOC Request No. 05940168 (May 25, 1995). The record does
not support a finding of such coercion. Accordingly, dismissal of claim 1 for untimely EEO counselor contact , and for previously abandoning claim 1, was appropriate.
Regarding claim 2, we find the record supports that Complainant had reasonable suspicion of a
discriminatory action as of his receipt of the notice of non- selection on October 25, 2023. As of
that date, Complainant knew of the personnel action, and he had the suspicion that Deputy Chief
had engaged in reprisal for Complainant’s prior EEO activity, allegedly poisoning the well of
selection panel members. As noted under the discussion of claim 1, the FOIA result represent s
claimed supportive facts rather than data required to create the reason able suspicion.
Complainant’s initial contact with the EEO counselor on January 2, 2024, was beyond the 45-day limitation from October 25, 2023. As such, dismissal of claim 2 for untimely EEO
counselor contact was appropriate.
CONCLUSION
Accordingly, the Agency’s final decision dismissing the 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 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
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 . 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
Fe
deral 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 -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 da ys 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 proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission.
The court has the sole discretion to grant or deny these types of requests. Such requests do not
alter the time limits for filing a civil action (please read the paragraph titled Complainant’s Right
to File a Civil Action for the specific time limits).
FOR THE COMMISSION:
______________________________ Carlton M. Hadden’s signature
Carlton M. Hadden, Director Office of Federal Operations
July 18, 2024
Date | [
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"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)",
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157 | https://www.eeoc.gov/sites/default/files/decisions/2021_08_31/2021001206.pdf | 2021001206.pdf | PDF | application/pdf | 15,170 | Shela O .,1 Complainant, v. Pete Buttigieg, Secret ary, Department of Transportation (Federal Aviation Administration), Agency. | November 18, 2020 | Appeal Number: 2021001206
Background:
At the time of events giving rise to this complaint, Complainant worked as an Air Traffic Control
Specialist , FV-K, at the Agency’s Boston Consolidated T RACON facility in Merrimack, N ew
Hampshire .
On October 23, 2020, Complainant filed a formal complaint alleging t hat the Agency subjected
her to discrimination on the bases of disability and reprisal for prior protected EEO activity
when , on April 30, 2020, she learned her request for a r easonable accommodation was denied.
On November 18, 2020, the Agency dismissed the complaint for untimely EEO Counselor
contact, stating the Complainant did not initiate such c ontact until June 30, 2020, more than
forty -five (45 ) days after the alleged discriminatory event.
The instant appeal from Complainant followed. On appeal, Complainant alleges she contact ed
the Agency EEO hotline via telephone on April 30, 2020, and left a message. She further
contends that she followed up with an electronic message on the Agency EEO filing portal on the
Agency’s website on May 1, 2020, stating that she had not received a response to her phone call
and that she “would like to initiate the pre -complaint process due to disability discrimination.”
Complainant states she was contacted via email on May 4, 2020 , by an I ntake EEO Specialist
(“Spec ialist 1”) and that she spoke with Spec ialist 1 via phone a few days later regarding her
complain t. (Ex., Appeal Statement).
The Agency does not provide an appellate response.
Legal Analysis:
EEOC Regulation 29 C.F.R. §1614.105(a)(1) provides that an aggrieved person must initiate contact with an EEO Counselor within forty five ( 45) days of the date of the matter alleged to be
discriminatory or, in the case of a personnel action, within forty -five ( 45) days of the effective
date of the action. EEOC Regulation 29 C.F.R. §1614.105(a)(2) allows the Agency or the Commission to extend the time limit if Complainant can establish that Complainant was not aware of the time limit, that Complainant did no t know and reasonably should not have known
that the discri minatory matter or personnel action occurred, that despite due diligence
complainant was prevented by circumstances beyond her control from contacting the EEO Counselor within the time limit, or fo r other reasons considered sufficient by the Agency or
Comm ission.
Additionally, 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 pr ocess. See Jayna A. v. U.S. Postal
Serv. , EEOC Appeal No. 2019000179 (Nov. 29, 2018) , citing Cristantiello v. Dep’t of the Army ,
EEOC Appeal No. 01992817 (Dec. 19, 2000), Cox v. Dep’t of Hous. and Urban Dev., EEOC
Request No. 05980083 (July 30, 1998); Alle n v. U.S. Postal Serv., EEOC Request No. 05950933
(July 9, 1996); Jones v. Dep't of the Army, EEOC Request No. 05900435 (Sept. 7, 1990).
Here, on appeal, the Complainant reports she contacted the Agency’s EEO intake hotline on
April 30, 2020. She also submits an email sent on May 1, 2020, via the Agency’s EEO filing
portal in which she specifically stated she wished to begin the pre -complaint process due to
disability discrimination. On May 5, 2020, Complainant received an email re sponse from
Spec ialist 1, whose email signature identified her as “Equal Employee Opportunity (EEO)
Specialist, Office of Civil Rights, Federal Aviation Administration.” In the email, Spec ialist 1
requested additional information , “[t]o ensure your complaint is process ed in a timel y manner.”
Spec ialist 1 sent another email to the Complainant on May 13, 2020, stating a different Agency
employee was in receipt of the information Complainant provided to Spec ialist 1 and another
Agency employee would “ process [the] complaint. ”
While the EEO Counselor’s report states the Complainant ’s date of initial contact was June 30,
2020, and that her initial interview with an EEO Counselor occurred July 21, 2020, the Agency
does not dispute that Complainant contacted their EEO hotline on April 30, 2020, and their
website portal on May 1, 2020. The Agency does not dispute Complainant was in contact with
Spec ialist 1 via telephone and email within the forty -five (45) day limitation . It appears clear
from the email communications between Complainant a nd Spec ialist 1 that C omplainant timely
contacted an Agency official logically connected to the EEO process and that Complainant
expressed the intent to file a n EEO complaint. Complainant contact ed the Agency’s EEO hotline
and portal and received a respons e from someone identifying themselves as an EEO Specialist
for the Agency within forty -five (45) days of the alleged discrimination . Also within that time
frame, Complainant stated she wanted to “ initia te the pre -complaint process due to disability
discrim ination ”, and in response, Spec ialist 1 references the Complainant ’s “complaint.”
The Agency has not provided any information to dispute th at Complainant contac ted Spec ialist 1
in May 2020 or that Spec ialist 1 is not logically connected to the EEO proces s. The evidence
provided by Complainant seems to indicate that Specialist 1 thought Complainant was amending
a prior EEO complaint and that Complainant was issued a denial of amendment on or before
June 10, 2020. On June 10, 2020 (still within forty -five (45) days of the alleged discrimination) ,
Complainant stated she had been trying to file a new complaint. Therefore, their indication that the Complainant’s May 2020 communications were an attempt to amend a prior EEO complaint
are irrelevant because the ev idence shows the Complainant timely contacted an EEO Counselor
and stated an intent to file an EEO complaint. | Shela O .,1
Complainant,
v.
Pete Buttigieg,
Secret ary,
Department of Transportation
(Federal Aviation Administration),
Agency.
Appeal No. 2021001206
Agency No. 2020-28885- FAA-01
DECISION
Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC
or Commission) from the Ag ency's decision dated November 18, 2020, dismissing her complaint
alleging unlawful employment discrimination in violation of Section 501 of the Rehabilitation
Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as an Air Traffic Control
Specialist , FV-K, at the Agency’s Boston Consolidated T RACON facility in Merrimack, N ew
Hampshire .
On October 23, 2020, Complainant filed a formal complaint alleging t hat the Agency subjected
her to discrimination on the bases of disability and reprisal for prior protected EEO activity
when , on April 30, 2020, she learned her request for a r easonable accommodation was denied.
On November 18, 2020, the Agency dismissed the complaint for untimely EEO Counselor
contact, stating the Complainant did not initiate such c ontact until June 30, 2020, more than
forty -five (45 ) days after the alleged discriminatory event.
The instant appeal from Complainant followed. On appeal, Complainant alleges she contact ed
the Agency EEO hotline via telephone on April 30, 2020, and left a message. She further
contends that she followed up with an electronic message on the Agency EEO filing portal on the
Agency’s website on May 1, 2020, stating that she had not received a response to her phone call
and that she “would like to initiate the pre -complaint process due to disability discrimination.”
Complainant states she was contacted via email on May 4, 2020 , by an I ntake EEO Specialist
(“Spec ialist 1”) and that she spoke with Spec ialist 1 via phone a few days later regarding her
complain t. (Ex., Appeal Statement).
The Agency does not provide an appellate response.
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R. §1614.105(a)(1) provides that an aggrieved person must initiate contact with an EEO Counselor within 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 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 no t know and reasonably should not have known
that the discri minatory matter or personnel action occurred, that despite due diligence
complainant was prevented by circumstances beyond her control from contacting the EEO Counselor within the time limit, or fo r other reasons considered sufficient by the Agency or
Comm ission.
Additionally, 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 pr ocess. See Jayna A. v. U.S. Postal
Serv. , EEOC Appeal No. 2019000179 (Nov. 29, 2018) , citing Cristantiello v. Dep’t of the Army ,
EEOC Appeal No. 01992817 (Dec. 19, 2000), Cox v. Dep’t of Hous. and Urban Dev., EEOC
Request No. 05980083 (July 30, 1998); Alle n v. U.S. Postal Serv., EEOC Request No. 05950933
(July 9, 1996); Jones v. Dep't of the Army, EEOC Request No. 05900435 (Sept. 7, 1990).
Here, on appeal, the Complainant reports she contacted the Agency’s EEO intake hotline on
April 30, 2020. She also submits an email sent on May 1, 2020, via the Agency’s EEO filing
portal in which she specifically stated she wished to begin the pre -complaint process due to
disability discrimination. On May 5, 2020, Complainant received an email re sponse from
Spec ialist 1, whose email signature identified her as “Equal Employee Opportunity (EEO)
Specialist, Office of Civil Rights, Federal Aviation Administration.” In the email, Spec ialist 1
requested additional information , “[t]o ensure your complaint is process ed in a timel y manner.”
Spec ialist 1 sent another email to the Complainant on May 13, 2020, stating a different Agency
employee was in receipt of the information Complainant provided to Spec ialist 1 and another
Agency employee would “ process [the] complaint. ”
While the EEO Counselor’s report states the Complainant ’s date of initial contact was June 30,
2020, and that her initial interview with an EEO Counselor occurred July 21, 2020, the Agency
does not dispute that Complainant contacted their EEO hotline on April 30, 2020, and their
website portal on May 1, 2020. The Agency does not dispute Complainant was in contact with
Spec ialist 1 via telephone and email within the forty -five (45) day limitation . It appears clear
from the email communications between Complainant a nd Spec ialist 1 that C omplainant timely
contacted an Agency official logically connected to the EEO process and that Complainant
expressed the intent to file a n EEO complaint. Complainant contact ed the Agency’s EEO hotline
and portal and received a respons e from someone identifying themselves as an EEO Specialist
for the Agency within forty -five (45) days of the alleged discrimination . Also within that time
frame, Complainant stated she wanted to “ initia te the pre -complaint process due to disability
discrim ination ”, and in response, Spec ialist 1 references the Complainant ’s “complaint.”
The Agency has not provided any information to dispute th at Complainant contac ted Spec ialist 1
in May 2020 or that Spec ialist 1 is not logically connected to the EEO proces s. The evidence
provided by Complainant seems to indicate that Specialist 1 thought Complainant was amending
a prior EEO complaint and that Complainant was issued a denial of amendment on or before
June 10, 2020. On June 10, 2020 (still within forty -five (45) days of the alleged discrimination) ,
Complainant stated she had been trying to file a new complaint. Therefore, their indication that the Complainant’s May 2020 communications were an attempt to amend a prior EEO complaint
are irrelevant because the ev idence shows the Complainant timely contacted an EEO Counselor
and stated an intent to file an EEO complaint.
CONCLUSION
The Agency's final decision dismissing the formal complaint is REVERSED and remanded for
further processing as set forth 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 shall acknowledge to the Com plainant 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 oth erwise 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 o f 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 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 p eriod.
IMPLEMENTATION OF THE COMMISSION’S DECISION (K07 19)
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 Porta l (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 r eport 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 h is/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 co mpliance 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 compl aint is subject to the deadline stated in 42 U.S.C. 2000e -16(c) (1994 &
Supp. IV 1999). If the Complainant files a civil action, the administrative processing of the complaint, including any petition for enforcement, will be terminated . See 29 C.F.R.
§ 1614.409.
Failure by an agency to either file a compliance report or implement any of the orders set forth in this 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 Complainant or the Agency submits a written request that contains argume nts 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 age ncy.
Requests for reconsideration must be filed with EEOC’s Office o f 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 req uest, 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 Di rective 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 legi ble postmark, a complainant’s request to
reconsider shall be deemed t imely 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 (Fe dSEP). 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 prevent ed the timely filing of the
request. Any supporting documentation must be submitted together with the request for
reconsideration. The Commission will consider requests for reconsideration filed after the deadline only in very limited circumstances. See 29 C.F.R. § 1614.604(c) .
COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION (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 attorne y 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 discret ion 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 25, 2021
Date | [
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"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)",
"Jones v. Dep't of the Army, EEOC Request No. 05900435 (Sept. 7, 1990... | [
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158 | https://www.eeoc.gov/sites/default/files/migrated_files/decisions/01A33023.txt | 01A33023.txt | TXT | text/plain | 13,585 | Arthur Abell v. Dept. of the Interior 01A33023 May 13, 2004 . Arthur Abell, Complainant, v. Gale A. Norton, Secretary, Department of the Interior, Agency. | May 13, 2004 | Appeal Number: 01A33023
Case Facts:
Complainant timely initiated an appeal from a final agency decision
(FAD) concerning 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.
The appeal is accepted pursuant to 29 C.F.R. § 1614.405. For the
following reasons, the Commission AFFIRMS the agency's FAD.
The procedural history of the instant case is summarized as follows:
complainant alleged discrimination on the bases of sex (male), age
(D.O.B. 1/22/43), race (Caucasian) and retaliation (prior EEO activity)
when he was not selected for various positions with the agency in 1995,
1999 and 2000. The Administrative Judge (AJ) assigned the case issued a
decision without a hearing dated September 30, 2002. In that decision,
the AJ considered the fourteen (14) positions complainant applied for
and found that he failed to demonstrate that the agency discriminated
against him based on his sex, age or race when he was not selected
for the positions at issue. Further, the AJ found that complainant
failed to establish that the agency retaliated against him based on his
prior EEO activity when he was not selected for the positions at issue.
The agency then issued a final order, implementing the AJ's decision.
Pursuant to complainant's appeal, the Commission issued a summary
decision dated April 21, 2003, affirming the agency's final order as
it found that the AJ's decision without a hearing was appropriate and
the record did not establish that discrimination occurred. See Abell
v. Dept. of the Interior, EEOC Appeal No. 01A31045 (April 21, 2003).
The record reveals that during the relevant time, complainant was employed
as a Management Analyst at the agency's National Park Service in various
locations. The record indicates that complainant worked for the NPS from
1967 until he was removed by the agency for alleged misconduct on June
11, 1993. The record indicates that since complainant's removal from
the agency in 1993, he has applied for numerous GS-12/13 and GS-13/14
positions with the agency. For each position at issue, complainant
submitted a Form 171, in which he stated that he had previously filed
several EEO complaints against the agency. Following each of his
nonselections, complainant filed an EEO complainant against the agency
on the bases noted above. The record indicates that complainant has
filed at least 43 complaints against the agency. The subject of the
instant appeal regards complainant's allegations of discrimination and
retaliation when he was not selected for ten (10) Administrative Officer
(AO) positions at various agency locations in New Mexico, Arkansas,
West Virginia, California, Colorado, Arizona and Virginia.
At the conclusion of the investigation, complainant was informed of his
right to request a hearing before an AJ or alternatively, to receive
a final decision by the agency. Although complainant requested a
formal hearing, the AJ in the instant case issued a decision without a
hearing, dismissing complainant's complaints for an abuse of process
pursuant to 29 C.F.R. § 1614.107(a). In her decision, the AJ noted
that complainant has filed at least 43 EEO complaints against the
agency since he was dismissed in 1993, none of which has resulted in a
finding of discrimination or retaliation by the Commission, the United
States Court of Appeals for the 10th Circuit or the U.S. Merit Systems
Protection Board. Citing the standard for abuse of the EEO process set
forth in 29 C.F.R. § 1614.107(a)(9), the AJ noted that complainant has
made multiple EEO complaint filings and these complaints were frequently
untimely, duplicative and meritless. As such, the AJ found that the
number of EEO complaints filed by complainant satisfied prong (1) of
the misuse of process standard.
Further, the AJ found that in each of complainant's complaints, he
used the same allegations, and thus his complaints lacked specificity
relating to the exact adverse action he has complained about in his
allegations. Specifically, the AJ found that complainant's allegations
were meretemplates, meaning that in each complaint, he abused the
EEO process by making identical, nonspecific allegations regardless
of the facts of the specific complaint. Moreover, the AJ found that
complainant's requested relief in each of the instant allegations
reflected an intent to misuse the EEO process. Finally, the AJ found that
complainant's request for witnesses reflected his intent to overburden
the EEO process and harass the agency. In so finding, the AJ noted that
for the instant allegations, complainant sought to present 72 witnesses
at the hearing, including the present Chair of the Commission, the former
Chair of the Commission, the Secretary of the Interior and the Director
of the Office of Federal Operations at the EEOC. The AJ found that
complainant's witness requests and deposition notice were evidence of
his intent to create unnecessary expense for the agency, while many of
the witnesses had no role in his nonselections. The AJ also found that
complainant intends to continue to apply for agency positions he had no
intention of accepting, for the sole purpose of filing EEO complaints
when he was not selected for the positions. After consideration of
the evidence, the AJ concluded that dismissal of complainant's ten (10)
pending EEO complaints was appropriate as there was evidence of numerous,
multiple complaint filings, combined with other evidence of his intent
to misuse the EEO process. The agency then issued a final decision,
concurring with the AJ's findings and decision. On appeal, complainant
made no contentions, while the agency requests that we affirm its FAD.
This Commission has the inherent power to control and prevent abuse of
its orders and processes and procedures. Burne v. United States Postal
Service, EEOC Request No. 05850299 (November 18, 1985). The procedures
contained in Commission regulations provide the process by which claims
of discrimination are processed in the Federal sector, with a goal
of eliminating or preventing unlawful employment discrimination. The
procedures set forth should not be misconstrued as substitutes for either
inadequate or ineffective labor-management relations or an alternative or
substitute for labor-management dispute resolution procedures. Sessoms
v. United States Postal Service, EEOC Appeal No. 01973440 (June 11, 1998).
Legal Analysis:
the Commission AFFIRMS the agency's FAD.
The procedural history of the instant case is summarized as follows:
complainant alleged discrimination on the bases of sex (male), age
(D.O.B. 1/22/43), race (Caucasian) and retaliation (prior EEO activity)
when he was not selected for various positions with the agency in 1995,
1999 and 2000. The Administrative Judge (AJ) assigned the case issued a
decision without a hearing dated September 30, 2002. In that decision,
the AJ considered the fourteen (14) positions complainant applied for
and found that he failed to demonstrate that the agency discriminated
against him based on his sex, age or race when he was not selected
for the positions at issue. Further, the AJ found that complainant
failed to establish that the agency retaliated against him based on his
prior EEO activity when he was not selected for the positions at issue.
The agency then issued a final order, implementing the AJ's decision.
Pursuant to complainant's appeal, the Commission issued a summary
decision dated April 21, 2003, affirming the agency's final order as
it found that the AJ's decision without a hearing was appropriate and
the record did not establish that discrimination occurred. See Abell
v. Dept. of the Interior, EEOC Appeal No. 01A31045 (April 21, 2003).
The record reveals that during the relevant time, complainant was employed
as a Management Analyst at the agency's National Park Service in various
locations. The record indicates that complainant worked for the NPS from
1967 until he was removed by the agency for alleged misconduct on June
11, 1993. The record indicates that since complainant's removal from
the agency in 1993, he has applied for numerous GS-12/13 and GS-13/14
positions with the agency. For each position at issue, complainant
submitted a Form 171, in which he stated that he had previously filed
several EEO complaints against the agency. Following each of his
nonselections, complainant filed an EEO complainant against the agency
on the bases noted above. The record indicates that complainant has
filed at least 43 complaints against the agency. The subject of the
instant appeal regards complainant's allegations of discrimination and
retaliation when he was not selected for ten (10) Administrative Officer
(AO) positions at various agency locations in New Mexico, Arkansas,
West Virginia, California, Colorado, Arizona and Virginia.
At the | Arthur Abell v. Dept. of the Interior
01A33023
May 13, 2004
.
Arthur Abell,
Complainant,
v.
Gale A. Norton,
Secretary,
Department of the Interior,
Agency.
Appeal No. 01A33023
Agency Nos. FNP-98-092; FNP-98-094; FNP-99-049; FNP-99-084; FNP-99-120;
FNP-01-027; FNP-01-077; FNP-01-083; FNP-01-097; FNP-01-101
Hearing Nos. 320-A2-8053X; 320-A2-8054X; 320-A2-8055X; 320-A2-8056X;
320-A2-8058X; 320-A2-8347X; 320-A2-8353X; 320-A2-8354X; 320-A2-8355X;
320-A2-8356X
DECISION
Complainant timely initiated an appeal from a final agency decision
(FAD) concerning 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.
The appeal is accepted pursuant to 29 C.F.R. § 1614.405. For the
following reasons, the Commission AFFIRMS the agency's FAD.
The procedural history of the instant case is summarized as follows:
complainant alleged discrimination on the bases of sex (male), age
(D.O.B. 1/22/43), race (Caucasian) and retaliation (prior EEO activity)
when he was not selected for various positions with the agency in 1995,
1999 and 2000. The Administrative Judge (AJ) assigned the case issued a
decision without a hearing dated September 30, 2002. In that decision,
the AJ considered the fourteen (14) positions complainant applied for
and found that he failed to demonstrate that the agency discriminated
against him based on his sex, age or race when he was not selected
for the positions at issue. Further, the AJ found that complainant
failed to establish that the agency retaliated against him based on his
prior EEO activity when he was not selected for the positions at issue.
The agency then issued a final order, implementing the AJ's decision.
Pursuant to complainant's appeal, the Commission issued a summary
decision dated April 21, 2003, affirming the agency's final order as
it found that the AJ's decision without a hearing was appropriate and
the record did not establish that discrimination occurred. See Abell
v. Dept. of the Interior, EEOC Appeal No. 01A31045 (April 21, 2003).
The record reveals that during the relevant time, complainant was employed
as a Management Analyst at the agency's National Park Service in various
locations. The record indicates that complainant worked for the NPS from
1967 until he was removed by the agency for alleged misconduct on June
11, 1993. The record indicates that since complainant's removal from
the agency in 1993, he has applied for numerous GS-12/13 and GS-13/14
positions with the agency. For each position at issue, complainant
submitted a Form 171, in which he stated that he had previously filed
several EEO complaints against the agency. Following each of his
nonselections, complainant filed an EEO complainant against the agency
on the bases noted above. The record indicates that complainant has
filed at least 43 complaints against the agency. The subject of the
instant appeal regards complainant's allegations of discrimination and
retaliation when he was not selected for ten (10) Administrative Officer
(AO) positions at various agency locations in New Mexico, Arkansas,
West Virginia, California, Colorado, Arizona and Virginia.
At the conclusion of the investigation, complainant was informed of his
right to request a hearing before an AJ or alternatively, to receive
a final decision by the agency. Although complainant requested a
formal hearing, the AJ in the instant case issued a decision without a
hearing, dismissing complainant's complaints for an abuse of process
pursuant to 29 C.F.R. § 1614.107(a). In her decision, the AJ noted
that complainant has filed at least 43 EEO complaints against the
agency since he was dismissed in 1993, none of which has resulted in a
finding of discrimination or retaliation by the Commission, the United
States Court of Appeals for the 10th Circuit or the U.S. Merit Systems
Protection Board. Citing the standard for abuse of the EEO process set
forth in 29 C.F.R. § 1614.107(a)(9), the AJ noted that complainant has
made multiple EEO complaint filings and these complaints were frequently
untimely, duplicative and meritless. As such, the AJ found that the
number of EEO complaints filed by complainant satisfied prong (1) of
the misuse of process standard.
Further, the AJ found that in each of complainant's complaints, he
used the same allegations, and thus his complaints lacked specificity
relating to the exact adverse action he has complained about in his
allegations. Specifically, the AJ found that complainant's allegations
were meretemplates, meaning that in each complaint, he abused the
EEO process by making identical, nonspecific allegations regardless
of the facts of the specific complaint. Moreover, the AJ found that
complainant's requested relief in each of the instant allegations
reflected an intent to misuse the EEO process. Finally, the AJ found that
complainant's request for witnesses reflected his intent to overburden
the EEO process and harass the agency. In so finding, the AJ noted that
for the instant allegations, complainant sought to present 72 witnesses
at the hearing, including the present Chair of the Commission, the former
Chair of the Commission, the Secretary of the Interior and the Director
of the Office of Federal Operations at the EEOC. The AJ found that
complainant's witness requests and deposition notice were evidence of
his intent to create unnecessary expense for the agency, while many of
the witnesses had no role in his nonselections. The AJ also found that
complainant intends to continue to apply for agency positions he had no
intention of accepting, for the sole purpose of filing EEO complaints
when he was not selected for the positions. After consideration of
the evidence, the AJ concluded that dismissal of complainant's ten (10)
pending EEO complaints was appropriate as there was evidence of numerous,
multiple complaint filings, combined with other evidence of his intent
to misuse the EEO process. The agency then issued a final decision,
concurring with the AJ's findings and decision. On appeal, complainant
made no contentions, while the agency requests that we affirm its FAD.
This Commission has the inherent power to control and prevent abuse of
its orders and processes and procedures. Burne v. United States Postal
Service, EEOC Request No. 05850299 (November 18, 1985). The procedures
contained in Commission regulations provide the process by which claims
of discrimination are processed in the Federal sector, with a goal
of eliminating or preventing unlawful employment discrimination. The
procedures set forth should not be misconstrued as substitutes for either
inadequate or ineffective labor-management relations or an alternative or
substitute for labor-management dispute resolution procedures. Sessoms
v. United States Postal Service, EEOC Appeal No. 01973440 (June 11, 1998).
EEOC Regulations provide for dismissal of complaints that are part of a
"clear pattern of misuse of the EEO process for a purpose other than the
prevention and elimination of employment discrimination." 29 C.F.R. §
1614.107(a)(9). The criteria required to justify dismissal for abuse of
process, as set forth in Commission decisions, must be applied strictly.
Id. These criteria require:
(i) Evidence of multiple complaint filings; and
(ii) Claims that are similar or identical, lack specificity or involve
matters previously resolved; or
(iii) Evidence of circumventing other administrative processes,
retaliating against the agency's in-house administrative processes or
overburdening the EEO complaint system.
On rare occasions, the Commission has applied abuse of process standards
to particular complaints. Occasions in which application of the standards
are appropriate must be rare, because of the strong policy in favor of
preserving a complainant's EEO rights whenever possible. See generally
Love v. Pullman, Inc., 404 U.S. 522 (1972); Wrenn v. Equal Employment
Opportunity Commission, EEOC Appeal No. 01932105 (August. 19, 1993).
Upon review, the Commission finds sufficient evidence to conclude that
complainant used the EEO process for the purpose of overburdening
the EEO system. We concur with the AJ's finding that complainant's
multiple EEO filings evidences a clear intent to overburden the EEO
system with duplicate and redundant complaints. By applying for
multiple positions, some of which he likely has no interest in other
than as a vehicle to file an EEO complaint, complainant is knowingly
filing repetitive complaints and appeals with the intent to "clog"
the EEO system. We concur with the AJ's finding that complainant has
blatantly overburdened the administrative system by filing the instant
complaints. The Commission cannot permit a party to utilize the EEO
process to circumvent administrative processes; nor can the Commission
permit individuals to overburden this system, which is designed to
protect innocent individuals from discriminatory practices. Thus, this
Commission declines to entertain the enumerated matters any further
because complainant is clearly abusing the process. Complainant is
strongly cautioned as to continuing such practices. Complainant's use of
the EEO system has evidenced a pattern of abuse, and he is reminded that
the agency may severely limit the amount of official EEO time, if any, for
complaints which are filed merely to overburden the system and perpetuate
a pattern of abuse. Having found that complainant has engaged in the
abuse of the EEO process, the Commission dismisses the instant appeal.
See Kessinger v. USPS, EEOC Appeal No. 01976399 (June 8, 1999).
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
The Commission may, in its discretion, reconsider the decision in this
case if the complainant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. The appellate decision involved a clearly erroneous interpretation
of material fact or law; or
2. The appellate decision will have a substantial impact on the policies,
practices, or operations of the agency.
Requests to reconsider, with supporting statement or brief, must be filed
with the Office of Federal Operations (OFO) within thirty (30) calendar
days of receipt of this decision or within twenty (20) calendar days of
receipt of another party's timely request for reconsideration. See 29
C.F.R. § 1614.405; Equal Employment Opportunity Management Directive for
29 C.F.R. Part 1614 (EEO MD-110), 9-18 (November 9, 1999). All requests
and arguments must be submitted to the Director, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. In the absence of a legible postmark, the
request to reconsider shall be deemed timely filed if it is received by
mail within five days of the expiration of the applicable filing period.
See 29 C.F.R. § 1614.604. The request or opposition must also include
proof of service on the other party.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely, unless extenuating circumstances
prevented the timely filing of the request. Any supporting documentation
must be submitted with your request for reconsideration. The Commission
will consider requests for reconsideration filed after the deadline only
in very limited circumstances. See 29 C.F.R. § 1614.604(c).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S0900)
You have the right to file a civil action in an appropriate United States
District Court within ninety (90) calendar days from the date that you
receive this decision. If you file a civil action, you must name as
the defendant in the complaint the person who is the official agency head
or department head, identifying that person by his or her full name and
official title. Failure to do so may result in the dismissal of your
case in court. "Agency" or "department" means the national organization,
and not the local office, facility or department in which you work. If you
file a request to reconsider and also file a civil action, filing a civil
action will terminate the administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z1199)
If you decide to file a civil action, and if you do not have or cannot
afford the services of an attorney, you may request that the Court appoint
an attorney to represent you and that the Court permit you to file the
action without payment of fees, costs, or other security. See Title VII
of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq.;
the Rehabilitation Act of 1973, as amended, 29 U.S.C. §§ 791, 794(c).
The grant or denial of the request is within the sole discretion of
the Court. Filing a request for an attorney does not extend your time
in which to file a civil action. Both the request and the civil action
must be filed within the time limits as stated in the paragraph above
("Right to File A Civil Action").
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
May 13, 2004
__________________
Date
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"Wrenn v. Equal Employment Opportunity Commission, EEOC Appeal No. 01932105 (August. 19, 1993)",
"Kessinger v. USPS, EEOC Appeal No. 0197... | [
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159 | https://www.eeoc.gov/sites/default/files/decisions/2024_12_09/2022004370.pdf | 2022004370.pdf | PDF | application/pdf | 22,494 | Woodrow F.,1 Complainant, v. Merrick B. Garland, Attorney General, Department of Justice (Drug Enforcement Administration), Agency. | June 8, 2022 | Appeal Number: 2022004370
Background:
During the period at issue, Complainant worked as a Special Agent at the U.S.
Embassy in Lima, Peru.
On April 17, 2019, Complainant filed a formal EEO complaint alleging that the
Agency discriminated against him based on a ge and in reprisal for prior
protected EEO activity (prior EEO case and his wife’s prior EEO case ).
By letter dated May 31, 2019, the Agency accepted the formal complaint for
investigation and framed his claims in the following fashion:
Whether Complainant was discriminated against based on age (51)
parental status, and reprisal when:
1. Since October 2018, Complainant has been subjected to a hostile work environment, including but not limited to the
following matters : when on or about October 15, 2018, he was
notified that he was not allowed to keep a rental car his wife
had access to during a medivac; his Assistant Regional Director
asked him more questions about his cases than he did of other
agents; his general supervisor referred to his relationship with
the Assistant Regional Director as “unhealthy ;” comments
adverse to Complainant were made to members of upper management including, but not limited to, the Acting Chief of
Operations;
2. On or about November 28, 2018, his travel vouchers were not
paid due to alleged erroneous payments made for 2017 and
2018;
3. On or about November 2018, Complainant was notified that he
owed the Agency money for the 2017 and 2018 medivac
evacuations;
4. On November 29, 2018, Complainant’s first- level supervisor,
(S1) issued him an annual performance appraisal which, on various job elements, was lower than his 2017 appraisal; and
5. On April 9, 2019 his second -line supervisor refused to approve
his request to alter the date he was scheduled to report to the
3 2022004370
Denver Field Division even though the Denver Field Division
had approved his request. Report of Investigation (ROI) at 50.
The Agency further set forth that the basis of parental status was not within
the jurisdiction of the EEOC. ROI at 51. Finally, the Agency dismissed another
claim on the grounds of untimely EEO Counselor contact. ROI at 52.
After an investigation, the Agency provided Complainant with a copy of the
report of investigation and notice of his right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ).
Complainant timely requested a hearing. W hile this matter was before an
EEOC AJ, Complainant withdrew the basis of age as well as claims (2) and (3) .
We therefore decline to address these matters further herein. Agency’s
Response Brief Exhibit A.
On October 19, 2021, Complainant withdrew his hearing request and
requested an Agency final decision. On that same day, the AJ issued an Order
of Dismissal remanding the matter to the Agency for a final decision. Consequently, the Agency issued a final decision pursuant to 29 C.F.R.
§ 1614.110(b).
The Agency’s final decision found no discrimination . The final decision found
that the alleged incidents were not sufficiently severe or pervasive to rise to the level of unlawful harassment. Final Agency Decision (FAD) at 11. The
Agency further found that management articulated legitimate,
nondiscriminatory reasons for Complainant not receiving an “Outstanding”
rating on his 2018 performance evaluation (claim (4)). Specifically, the final
Legal Analysis:
the Commission VACATES the Agency’s final decision and remands this matter
to the Agency for a supplemental investigation.
ISSUE PRESENTED
Whether the Agency’s final decision properly found that Complainant was not
subjected to retaliation regarding the claims at issue.
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 2022004370
BACKGROUND
During the period at issue, Complainant worked as a Special Agent at the U.S.
Embassy in Lima, Peru.
On April 17, 2019, Complainant filed a formal EEO complaint alleging that the
Agency discriminated against him based on a ge and in reprisal for prior
protected EEO activity (prior EEO case and his wife’s prior EEO case ).
By letter dated May 31, 2019, the Agency accepted the formal complaint for
investigation and framed his claims in the following fashion:
Whether Complainant was discriminated against based on age (51)
parental status, and reprisal when:
1. Since October 2018, Complainant has been subjected to a hostile work environment, including but not limited to the
following matters : when on or about October 15, 2018, he was
notified that he was not allowed to keep a rental car his wife
had access to during a medivac; his Assistant Regional Director
asked him more questions about his cases than he did of other
agents; his general supervisor referred to his relationship with
the Assistant Regional Director as “unhealthy ;” comments
adverse to Complainant were made to members of upper management including, but not limited to, the Acting Chief of
Operations;
2. On or about November 28, 2018, his travel vouchers were not
paid due to alleged erroneous payments made for 2017 and
2018;
3. On or about November 2018, Complainant was notified that he
owed the Agency money for the 2017 and 2018 medivac
evacuations;
4. On November 29, 2018, Complainant’s first- level supervisor,
(S1) issued him an annual performance appraisal which, on various job elements, was lower than his 2017 appraisal; and
5. On April 9, 2019 his second -line supervisor refused to approve
his request to alter the date he was scheduled to report to the
3 2022004370
Denver Field Division even though the Denver Field Division
had approved his request. Report of Investigation (ROI) at 50.
The Agency further set forth that the basis of parental status was not within
the jurisdiction of the EEOC. ROI at 51. Finally, the Agency dismissed another
claim on the grounds of untimely EEO Counselor contact. ROI at 52.
After an investigation, the Agency provided Complainant with a copy of the
report of investigation and notice of his right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ).
Complainant timely requested a hearing. W hile this matter was before an
EEOC AJ, Complainant withdrew the basis of age as well as claims (2) and (3) .
We therefore decline to address these matters further herein. Agency’s
Response Brief Exhibit A.
On October 19, 2021, Complainant withdrew his hearing request and
requested an Agency final decision. On that same day, the AJ issued an Order
of Dismissal remanding the matter to the Agency for a final decision. Consequently, the Agency issued a final decision pursuant to 29 C.F.R.
§ 1614.110(b).
The Agency’s final decision found no discrimination . The final decision found
that the alleged incidents were not sufficiently severe or pervasive to rise to the level of unlawful harassment. Final Agency Decision (FAD) at 11. The
Agency further found that management articulated legitimate,
nondiscriminatory reasons for Complainant not receiving an “Outstanding”
rating on his 2018 performance evaluation (claim (4)). Specifically, the final
decision set forth that Complainant had produced “just a few wri tten work
products during the rating period.” Id . The Agency further found that
Complainant failed to establish that the Agency’s articulated reason for his rating was pretext for retaliation. FAD at 12. Finally, the Agency’s final
decision found that management articulated a legitimate, non- discriminatory
reason for denying Complainant’s request to change his reporting date to the Denver Division. Specifically, the Agency’s final decision set forth that S2 had
already approved Complainant’s request to end his tour in Peru on June 22,
2019, and that S2 believed that Complainant had to report to Denver when his tour in Peru ended. FAD at 12. The Agency’s final decision further found
2 Complainant does not expressly contest, on appeal, the Agency’s
determination regarding the basis of parental status or the dismissal of one of
his claims for untimely EEO Counselor contact . We therefore decline to
address these matters further herein.
4 2022004370
that Complainant failed to establish that management’s articulated reason for
this action was pretext for retaliation. FAD at 13.
The instant appeal followed.
CONTENTIONS ON APPEAL
Complainant does not submit a statement or brief in support of his appeal.
The Agency, in opposition to Complainant’s appeal, requests that we affirm its
final decision finding no retaliation. The Agency asserts that the alleged
incidents do not set forth a prima facie case of a hostile work environment
because the record does not reflect that the alleged incidents were based on
his prior protected EEO activity. In addition, the Agency asserts that the
alleged incidents would not dissuade a reasonable employee from engaging in protected EEO activity in the future.
STANDARD OF REVIEW
As this is an appeal from a decision issued without a hearing, pursuant to 29
C.F.R. § 1614.110(b), the Agency's decision is subject to de novo review by
the Commission. 29 C.F.R. § 1614.405(a). See Equal Employment
Opportunity Management Directive for 29 C.F.R. Part 1614, at Chapter 9,
§ VI.A. (Aug. 5, 2015) (explaining that the de novo standard of review
“requires that the Commission examine the record 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
During the investigative phase of the federal administrative process, the
agency has an obligation to develop an adequate investigative record. 29
C.F.R. § 1614.108. An appropriate factual record is one that allows a
reasonable factfinder to draw a concl usion as to whether discrimination
occurred. 29 C.F.R. § 1614.108(b). The investigator must conduct a thorough investigation, “identifying and obtaining all relevant evidence from all sources
regardless of how it may affect the outcome.” Equal Employment Opportunity
Directive for 29 C.F.R. Part 1614, at Chapter 6, § V.D. (Aug. 5, 2015).
5 2022004370
The investigation in the instant matter was inadequate. For example, in the
EEO Counselor’s Report, Complainant alleged that his first- level supervisor
(S1) made various comments regarding his prior EEO activity. ROI at 24.
Specifically, according to the EEO Counselor’s Report, “[Complainant] stated
[S1] said ‘because of his previous EEO complaint, [Complainant] created a
situation for the group which has made things difficult.’ [Complainant] stated
[S1] told him that [Complainant] didn’t make things be tter by filing an EEO
case, now the group relationship with the [Regional Director] is not healthy.”3
ROI at 24. In addition, in his affidavit, Complainant stated that S1 made the
comment about his relationship with the Assistant Regional Director being
unhealthy during conversations pertaining to his performance evaluation.4
ROI at 91 -92. The record reflects that the EEO Investigator interviewed S1
as part of the investigation. However, the EEO Investigator did not expressly
ask S1 if he made the alleged statements referencing Complainant’s prior EEO
activity .5
The record also contains an affidavit from Complainant’s fourth -level
supervisor (S4), Acting Chief of Operations, during the period at issue. In response to being asked by the EEO Investigator if Complainant’s third -level
supervisor (S3) made adverse comments about Complainant, S4 stated, in pertinent part, that “[h]e did mention to me that…he was aware that an EEO
had been filed and mentioned to me in general terms that he’d been having
some challenges with the employee, and so he was working through tho se
issues as his manager and his leader down in Peru.”
6 ROI at 134. The EEO
Investigator, however, did not expressly follow up with S4 as to what were
the specific comments that S3 made regarding Complainant’s prior EEO
activity. In addition, it is not clear from the record before us if S4 was aware of Complainant’s EEO activity prior to the alleged comments made by S3. In
addition, while the EEO Investigator inte rviewed S3 as part of the
investigation, the Investigator did not expressly ask S3 if he spoke to S4 about
Complainant’s prior EEO activity, as alleged by S4 in his affidavit.
3 We find these matters are encompassed within claim (1).
4 Complainant challenges his 2018 performance evaluation rating in claim (4).
5 The EEO Investigator asked S1 if he referred to Complainant’s relationship
with the Assistant Regional Director as “unhealthy .” However, the Investigator
did not expressly ask S1 if he made the alleged comments at issue regarding
Complainant’s prior EEO activity. ROI at 223.
6 We find these matters are encompassed within claim (1).
6 2022004370
As a general matter, the statutory anti -retaliation provisions prohibit any
adverse treatment that is based on a retaliatory motive and is reasonably
likely to deter a reasonable employee from engaging in protected activity.
Burlington N. and Santa Fe Ry. Co. v. White , 548 U.S. 53 (2006). Given the
importance of maintaining “unfettered access to [the] statutory remedial mechanisms” in the anti -retaliation provisions, we have found a broad range
of actions to be retaliatory. See EEOC Enforcement Guidance on Retaliation
and Related Issues , No. 915.004 at II(A)(1) (Aug. 25, 2016). Comments that,
on their face, discourage an employee from participating in the EEO process violate the letter and the spirit of the EEOC regulations and evidence a per se
violation of the law. Binseel v. Dep’t of the Army, EEOC Request No.
05970584 (Oct. 8, 1998). For example, we have held that a supervisor threatening an employee by saying, “What goes around, comes around” when
discussing an EEO complaint constitutes 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). We have also found that a supervisor attempting to counsel an employee against pursuing an EEO
complaint “as a friend,” even if intended innocently, is reprisal. Woolf v. Dep't
of Energy , EEOC Appeal No. 0120083727 (June 4, 2009) (violation found when
a Labor Management Specialist told the complainant, “as a friend,” that her
EEO claim would polarize the office).
While this decision specifically addresses the inadequacies in the investigation
regarding the alleged comments made by Agency officials pertaining to
Complainant’s protected EEO activity, we REMAND the entire complaint for a
supplemental investigation in order not to fragment Complainant’s claims. | Woodrow F.,1
Complainant,
v.
Merrick B. Garland,
Attorney General,
Department of Justice
(Drug Enforcement Administration),
Agency.
Appeal No. 2022004370
Agency No. DEA- 2019- 00404
DECISION
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 June 8, 2022 final decision concerning his equal
employment opportunity (EEO) complaint alleging emplo yment discrimination
in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended,
42 U.S.C. § 2000e et seq . and the Age Discrimination in Employment Act of
1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. For the following reasons, the Commission VACATES the Agency’s final decision and remands this matter
to the Agency for a supplemental investigation.
ISSUE PRESENTED
Whether the Agency’s final decision properly found that Complainant was not
subjected to retaliation regarding the claims at issue.
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 2022004370
BACKGROUND
During the period at issue, Complainant worked as a Special Agent at the U.S.
Embassy in Lima, Peru.
On April 17, 2019, Complainant filed a formal EEO complaint alleging that the
Agency discriminated against him based on a ge and in reprisal for prior
protected EEO activity (prior EEO case and his wife’s prior EEO case ).
By letter dated May 31, 2019, the Agency accepted the formal complaint for
investigation and framed his claims in the following fashion:
Whether Complainant was discriminated against based on age (51)
parental status, and reprisal when:
1. Since October 2018, Complainant has been subjected to a hostile work environment, including but not limited to the
following matters : when on or about October 15, 2018, he was
notified that he was not allowed to keep a rental car his wife
had access to during a medivac; his Assistant Regional Director
asked him more questions about his cases than he did of other
agents; his general supervisor referred to his relationship with
the Assistant Regional Director as “unhealthy ;” comments
adverse to Complainant were made to members of upper management including, but not limited to, the Acting Chief of
Operations;
2. On or about November 28, 2018, his travel vouchers were not
paid due to alleged erroneous payments made for 2017 and
2018;
3. On or about November 2018, Complainant was notified that he
owed the Agency money for the 2017 and 2018 medivac
evacuations;
4. On November 29, 2018, Complainant’s first- level supervisor,
(S1) issued him an annual performance appraisal which, on various job elements, was lower than his 2017 appraisal; and
5. On April 9, 2019 his second -line supervisor refused to approve
his request to alter the date he was scheduled to report to the
3 2022004370
Denver Field Division even though the Denver Field Division
had approved his request. Report of Investigation (ROI) at 50.
The Agency further set forth that the basis of parental status was not within
the jurisdiction of the EEOC. ROI at 51. Finally, the Agency dismissed another
claim on the grounds of untimely EEO Counselor contact. ROI at 52.
After an investigation, the Agency provided Complainant with a copy of the
report of investigation and notice of his right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ).
Complainant timely requested a hearing. W hile this matter was before an
EEOC AJ, Complainant withdrew the basis of age as well as claims (2) and (3) .
We therefore decline to address these matters further herein. Agency’s
Response Brief Exhibit A.
On October 19, 2021, Complainant withdrew his hearing request and
requested an Agency final decision. On that same day, the AJ issued an Order
of Dismissal remanding the matter to the Agency for a final decision. Consequently, the Agency issued a final decision pursuant to 29 C.F.R.
§ 1614.110(b).
The Agency’s final decision found no discrimination . The final decision found
that the alleged incidents were not sufficiently severe or pervasive to rise to the level of unlawful harassment. Final Agency Decision (FAD) at 11. The
Agency further found that management articulated legitimate,
nondiscriminatory reasons for Complainant not receiving an “Outstanding”
rating on his 2018 performance evaluation (claim (4)). Specifically, the final
decision set forth that Complainant had produced “just a few wri tten work
products during the rating period.” Id . The Agency further found that
Complainant failed to establish that the Agency’s articulated reason for his rating was pretext for retaliation. FAD at 12. Finally, the Agency’s final
decision found that management articulated a legitimate, non- discriminatory
reason for denying Complainant’s request to change his reporting date to the Denver Division. Specifically, the Agency’s final decision set forth that S2 had
already approved Complainant’s request to end his tour in Peru on June 22,
2019, and that S2 believed that Complainant had to report to Denver when his tour in Peru ended. FAD at 12. The Agency’s final decision further found
2 Complainant does not expressly contest, on appeal, the Agency’s
determination regarding the basis of parental status or the dismissal of one of
his claims for untimely EEO Counselor contact . We therefore decline to
address these matters further herein.
4 2022004370
that Complainant failed to establish that management’s articulated reason for
this action was pretext for retaliation. FAD at 13.
The instant appeal followed.
CONTENTIONS ON APPEAL
Complainant does not submit a statement or brief in support of his appeal.
The Agency, in opposition to Complainant’s appeal, requests that we affirm its
final decision finding no retaliation. The Agency asserts that the alleged
incidents do not set forth a prima facie case of a hostile work environment
because the record does not reflect that the alleged incidents were based on
his prior protected EEO activity. In addition, the Agency asserts that the
alleged incidents would not dissuade a reasonable employee from engaging in protected EEO activity in the future.
STANDARD OF REVIEW
As this is an appeal from a decision issued without a hearing, pursuant to 29
C.F.R. § 1614.110(b), the Agency's decision is subject to de novo review by
the Commission. 29 C.F.R. § 1614.405(a). See Equal Employment
Opportunity Management Directive for 29 C.F.R. Part 1614, at Chapter 9,
§ VI.A. (Aug. 5, 2015) (explaining that the de novo standard of review
“requires that the Commission examine the record 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
During the investigative phase of the federal administrative process, the
agency has an obligation to develop an adequate investigative record. 29
C.F.R. § 1614.108. An appropriate factual record is one that allows a
reasonable factfinder to draw a concl usion as to whether discrimination
occurred. 29 C.F.R. § 1614.108(b). The investigator must conduct a thorough investigation, “identifying and obtaining all relevant evidence from all sources
regardless of how it may affect the outcome.” Equal Employment Opportunity
Directive for 29 C.F.R. Part 1614, at Chapter 6, § V.D. (Aug. 5, 2015).
5 2022004370
The investigation in the instant matter was inadequate. For example, in the
EEO Counselor’s Report, Complainant alleged that his first- level supervisor
(S1) made various comments regarding his prior EEO activity. ROI at 24.
Specifically, according to the EEO Counselor’s Report, “[Complainant] stated
[S1] said ‘because of his previous EEO complaint, [Complainant] created a
situation for the group which has made things difficult.’ [Complainant] stated
[S1] told him that [Complainant] didn’t make things be tter by filing an EEO
case, now the group relationship with the [Regional Director] is not healthy.”3
ROI at 24. In addition, in his affidavit, Complainant stated that S1 made the
comment about his relationship with the Assistant Regional Director being
unhealthy during conversations pertaining to his performance evaluation.4
ROI at 91 -92. The record reflects that the EEO Investigator interviewed S1
as part of the investigation. However, the EEO Investigator did not expressly
ask S1 if he made the alleged statements referencing Complainant’s prior EEO
activity .5
The record also contains an affidavit from Complainant’s fourth -level
supervisor (S4), Acting Chief of Operations, during the period at issue. In response to being asked by the EEO Investigator if Complainant’s third -level
supervisor (S3) made adverse comments about Complainant, S4 stated, in pertinent part, that “[h]e did mention to me that…he was aware that an EEO
had been filed and mentioned to me in general terms that he’d been having
some challenges with the employee, and so he was working through tho se
issues as his manager and his leader down in Peru.”
6 ROI at 134. The EEO
Investigator, however, did not expressly follow up with S4 as to what were
the specific comments that S3 made regarding Complainant’s prior EEO
activity. In addition, it is not clear from the record before us if S4 was aware of Complainant’s EEO activity prior to the alleged comments made by S3. In
addition, while the EEO Investigator inte rviewed S3 as part of the
investigation, the Investigator did not expressly ask S3 if he spoke to S4 about
Complainant’s prior EEO activity, as alleged by S4 in his affidavit.
3 We find these matters are encompassed within claim (1).
4 Complainant challenges his 2018 performance evaluation rating in claim (4).
5 The EEO Investigator asked S1 if he referred to Complainant’s relationship
with the Assistant Regional Director as “unhealthy .” However, the Investigator
did not expressly ask S1 if he made the alleged comments at issue regarding
Complainant’s prior EEO activity. ROI at 223.
6 We find these matters are encompassed within claim (1).
6 2022004370
As a general matter, the statutory anti -retaliation provisions prohibit any
adverse treatment that is based on a retaliatory motive and is reasonably
likely to deter a reasonable employee from engaging in protected activity.
Burlington N. and Santa Fe Ry. Co. v. White , 548 U.S. 53 (2006). Given the
importance of maintaining “unfettered access to [the] statutory remedial mechanisms” in the anti -retaliation provisions, we have found a broad range
of actions to be retaliatory. See EEOC Enforcement Guidance on Retaliation
and Related Issues , No. 915.004 at II(A)(1) (Aug. 25, 2016). Comments that,
on their face, discourage an employee from participating in the EEO process violate the letter and the spirit of the EEOC regulations and evidence a per se
violation of the law. Binseel v. Dep’t of the Army, EEOC Request No.
05970584 (Oct. 8, 1998). For example, we have held that a supervisor threatening an employee by saying, “What goes around, comes around” when
discussing an EEO complaint constitutes 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). We have also found that a supervisor attempting to counsel an employee against pursuing an EEO
complaint “as a friend,” even if intended innocently, is reprisal. Woolf v. Dep't
of Energy , EEOC Appeal No. 0120083727 (June 4, 2009) (violation found when
a Labor Management Specialist told the complainant, “as a friend,” that her
EEO claim would polarize the office).
While this decision specifically addresses the inadequacies in the investigation
regarding the alleged comments made by Agency officials pertaining to
Complainant’s protected EEO activity, we REMAND the entire complaint for a
supplemental investigation in order not to fragment Complainant’s claims.
CONCLUSION
Based on the foregoing, we VACATE the Agency’s final decision finding no
retaliation and we REMAND this matter to the Agency for a supplemental
investigation in accordance with the ORDER below.
ORDER
Within 90 (ninety) calendar days from the date this decision is issued, the
Agency shall take the following actions:
7 As discussed above, the instant matter includes claims (1), (4), and (5) on
the basis of reprisal for prior protected activity. Complainant previously
withdrew claims (2) -(3) and the basis of age.
7 2022004370
1. The Agency shall conduct a supplemental investigation, consistent
with this decision, regarding the alleged comments pertaining to
Complainant’s protected EEO activity, made by management
officials, S1 and S3. The supplemental investigation shall include,
but shall not be limited to, obtaining supplemental affidavits by S1
and S3 addressing, with specificity, if they made the alleged
comments related to Complainant’s protected EEO activity as set forth in this decision . These supplemental affidavits shall also address
in what context these alleged comments were made (i.e. whether the alleged comments by S1 were made during a conversation involving
Complainant’s performance evaluation). The supplemental
investigation shall also include a supplemental affida vit from S4
addressing with specificity the exact comments S3 made to S4 regarding Complainant’s protected EEO activity and whether S4 was aware of Complainant’s prior EEO activity prior to S3’s comments.
Thereafter, the Agency shall provide Complainant with an opportunity
to submit a supplemental affidavit regarding these matters. The
Agency shall supplement the record with any additional relevant
documentation consistent with this decision.
2. Thereafter, the Agency shall issue a new final decision, with appeal
rights to the Commission.
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 evidence that the directed action has been taken.
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 (Fe dSEP) 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
8 2022004370
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 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 (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
9 2022004370
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
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 ( R0124)
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 yo u file a civil action,
10 2022004370
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. 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 o r 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 30, 2024
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"29 C.F.R. § 1614.110(b)",
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160 | https://www.eeoc.gov/sites/default/files/decisions/2024_05_22/2024000892.pdf | 2024000892.pdf | PDF | application/pdf | 16,899 | Emelda F .,1 Complainant, v. Alejandro N. Mayorkas, Secretary, Department of Homeland Security, Agency. | October 5, 2023 | Appeal Number: 2024000892
Background:
At the time of ev ents giving rise to this complaint, Complainant worked as a n Intelligence
Operations Specialist, GS -0132-13, at the Agency’s Intelligence and Analysis, Office of
Counterintelligence Mission Center facility in Washington , D.C.
On July 25, 2023, Complainant filed a formal complaint alleging that the Agency subjected her to discrimination on the bases of sex (female), religion (Jewish), and age (67) when:
1. From June 20, 2022, to M arch 1, 2023, the Senior Leade r for En terprise Program
Management and Mission Inte gration (Senior Leader) did not act when
Complainant ’s supervi sory Te am Lead subjected her to harassment;
2. In or around November 2022, Senio r Leader denied Complain ant’s request for a
reassignm ent; and
3. On March 1, 2023, Senior Leader terminated Complain ant’s federal employ ment.
The Agency dismissed the claim s for un timely EEO Counselor contact. The Agency noted that
the most recent alleged discriminatory event occurred on March 1, 2023, but Compla inant did
not conta ct an EEO Co unselor until May 17, 2023.
CONTENTIONS ON APPEAL
Complainant contends that she believed that the time limit was on hold because the Agency
Anti-Harassment Unit (AHU) was still looking into her claims when the last incident occurred.
Complaina nt maintains that when the Counter intelligence Director (Director) learned of
Complainant ’s allegatio ns of harassment an d that Senior Leader was failing to act , he “insisted ”
that Senior Leader file an anti- harassment complaint on her behalf with the A HU. Complainant
further c ontends that Senior Leader was slow t o comply but eventually did so in December 2022
and that the matter was still being in vestigated by AHU when Complainant was issued the
removal notice. Complainant maintains that she “ reasonably ” believed th at the time limit for
filing w as on hold until AHU completed its findings.
Complainant filed a second br ief wherein she argues that neither the Termina tion notice , nor
Senior Leader , nor her EEO training , notified her that follo wing a termination she had “ 45 days
to note an appeal [s ic].” Finally, Complainant argues that she did not reasonably suspec t
discrimination until July 14, 2023, and that she tim ely filed her formal complaint.
Complainant ’s remaining arguments address the merits of her underlying complaints and are th us
not r elevant to the instant appeal which addresses only the timelin ess of her EEO Counselor
contact .
The Agency on appeal ar gues that C ompla inant was informed about the relevant time periods on
numerous occ asions including her EEO training, the termination notice itself, and
correspondence from AHU which notified Co mplainant of the EEO deadline, and further
notified her that filin g a complaint with AHU did not prec lude filing a n EEO complaint at the
same time and did not toll any applica ble time limits .
STANDARD OF REVIEW
The Agency’s decision to dismiss a complaint is subj ect 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 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:
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 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 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 ca se of a personnel action,
within forty -five (45) days of the effective date of the action. The record discloses that the latest
alleged discriminatory event raised in Claim #3 occurred on March 1, 2023, but Complainant did
not initiate contact with an EEO Counselor until May 17, 2023, which is beyond the forty- five
(45) day limitation pe riod.
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 th at the discriminatory
matter or personne l action occurred, that despite due diligence s 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 th e Commission. As noted in the FAD, t he
record shows that Complai nant took EEO training entitled Preventing and Addressing
Workplace Harassment on April 26, 2021, and again on August 22, 2022, and No Fear Act
training on June 22, 2021. This is suffi cient to establish that C omplainant had constr uctive
knowledge of the relevant time pe riods.
With regard to Complainant ’s contention that she mistakenly believed the time limits for
initiating EEO Counselor contact would be tolled during the AH U investig ation, w e note initially
that the Commission has consistently held that internal appeals or informal efforts to challenge
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. Se e Hosfor d v. Department of Vet erans Affairs , EEO C
Request No. 05890038 (June 9, 1989); Miller v. United States Postal Service , EEOC Request
No. 05880835 (February 2, 1989). Furthermore, the record show s that Complainant had
constructive knowledge of this fact. Sp ecifically, as the Agency p oints out on a ppeal, the
December 28, 2022, letter of acceptance from AHU notified Complainant that she may file an
EEO complaint concurrently with an AHU investigation.
The letter fur ther specifically notified Complainant that s hould she wish to file an EEO
complaint “you must contact ” the Agency EEO Office “ withing [sic] 45 calendar days of the
alleged discriminator y act or when you became aware of the di scrimina tory act. ” (Emphasis in
original) . The letter further notif ied Complainant that the AHU process was separate from the
EEO process, and that filing with AHU “does not prec lude a concurrent filing of an EEO
complaint , nor does it toll any time limits ass ociated with filing such a complaint.”
We note that Complain ant submi tted a brief with her appeal in which she raised the above
argument s and a month later submitted an additional brief . We further note that 29 C.F.R. §
1614.403(d) does not contemplate additional briefs beyond the initial brief. However, even
assumi ng we accept Complainant ’s subsequent brie f, we f ind Complainant ’s arguments
contained ther ein to be unpersua sive. Complainant argues that neither the Termination notice,
nor Senior Leader, nor her EEO training, notified her that following a termination s he had “ 45
days to note an appeal .” We note, howe ver, that the relevant issue is not the filing of an appeal
but EEO Counselor contact. Following a review of the record, we further note that the
Termination noti ce, signed by Complainant on March 1, 2023, clearly states on the second page ,
in the th ird p aragraph under “Instructions ,” that “if you believe discrimination . . . motivated this
action ” that Complainant may contact the Agency EEO office and that “ it is important to
understand that if you choose to pursue an EEO comp laint against the Dep artment, then you
must contact an EEO Counselor within forty five (45) calendar days of this action.” Furthermore ,
as noted above , Complainant was also notified of the relevant time periods when she received
her noti ce of acceptance from the Agency AHU in December 2023. In addition, we are
unpersuaded by Complainant ’s bare assertion that her EEO training omitted basic information
about timelines for filing. We therefore find Complainant ’s mistak en belief to be insuffi cient to
extend the time limits for filing.
With regard to Complainant ’s argument that she did not suspect discrimination until July 14,
2023, we note that t he Commission has adopted a reasonable suspicion standard to determine
when the forty -five (45) da y limita tion period is triggered. See Howard v. D ep't of the Navy ,
EEOC Appeal No. 01965648 (Feb. 11, 1999). Thus, the time limitation is not triggered until a complainant reasonab ly suspects discrimination, but before all the facts that support a charge of
discri mination have become apparent. Complainant contends that Senior L eader is “too
sophisticated an indi vidual to allow his prejudices to be on public display” and that it was only
“after a thorough review of [Senior Leader ’s] Termination Memorandum [t hat] Com plainant
concluded in late June 2023 [Senior Leader] hated her because she was Jewish, a graduate of an
elite Ivy League University in New York City , and in his opinion, a member of the powerful
Jewish lobby.”
Complainant, however, has not explai ned what cause d her , “in late June ,” to develop reasonable
suspicion that she previously did not have , other than the fact she received her Notice of Right to
File fr om the EEO office on June 14, 2023. Specif ically, Complainant has not explained what it
was about receiving a procedural notice from the Ag ency EE O office that so mehow cau sed her
to devel op reasonable suspicion about the allegedly discriminatory motivation of an individual
unrelated to that office.
Given that C omplainant conta cted an EEO Counselor on M ay 17, 2023, to allege, among othe r
things, that Senior Leader discriminated against her based on religion we remain unpersuaded by
Complainant ’s contention that she did not develop reasonable suspicion of Senior Leader ’s
religious discrimination until a month later. Because Complainant cannot sh ow that she only
developed reasonable suspicion within the 45- day pe riod prior to her EEO C ounselor contact, we
find instead that she reasonably suspected discrimination at the time she received her terminat ion
notice and hence her C ounselor co ntact is unt imely.
Finally, with regard to Complainant ’s argument that she timely filed her formal c omplaint, we
note that the Agency dismissed her complaint because of unt imely EEO Counselor contact, not
because of u ntimely filing of the formal complaint, and thus the fact that she timely filed her
formal complaint does not alter the outco me.
For the above reasons we find that Complainant has presented no persuasive arguments or
evidence warranting an extension of t he time limit for initiating EEO Counselor contac t. | Emelda F .,1
Complainant,
v.
Alejandro N. Mayorkas,
Secretary,
Department of Homeland Security,
Agency.
Appeal No. 2024000892
Agency No. HS- HQ-01599-2023
DECISION
Complainant filed a timely appeal with th e Equal Employment Opportunity Commission (EEOC
or Commission) from the Agency's decision dated October 5, 2023, dismissing her complaint of
unlawful employment discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amen ded, 42 U.S.C. § 2000e et seq., and the Age Discrimination in Employment
Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. For the reasons presented below, w e
AFFIRM the Agency’s final decision dismissing Complainant’s complaint.
ISSUE PRESENTED
Wheth er the Agency’s final decision properly dismissed Complainant’s formal complaint
pursuant to 29 C.F.R. § 1614.107(a)(2), for untimely EEO Counselor contact.
BACKGROUND
At the time of ev ents giving rise to this complaint, Complainant worked as a n Intelligence
Operations Specialist, GS -0132-13, at the Agency’s Intelligence and Analysis, Office of
Counterintelligence Mission Center facility in Washington , D.C.
On July 25, 2023, Complainant filed a formal complaint alleging that the Agency subjected her to discrimination on the bases of sex (female), religion (Jewish), and age (67) when:
1. From June 20, 2022, to M arch 1, 2023, the Senior Leade r for En terprise Program
Management and Mission Inte gration (Senior Leader) did not act when
Complainant ’s supervi sory Te am Lead subjected her to harassment;
2. In or around November 2022, Senio r Leader denied Complain ant’s request for a
reassignm ent; and
3. On March 1, 2023, Senior Leader terminated Complain ant’s federal employ ment.
The Agency dismissed the claim s for un timely EEO Counselor contact. The Agency noted that
the most recent alleged discriminatory event occurred on March 1, 2023, but Compla inant did
not conta ct an EEO Co unselor until May 17, 2023.
CONTENTIONS ON APPEAL
Complainant contends that she believed that the time limit was on hold because the Agency
Anti-Harassment Unit (AHU) was still looking into her claims when the last incident occurred.
Complaina nt maintains that when the Counter intelligence Director (Director) learned of
Complainant ’s allegatio ns of harassment an d that Senior Leader was failing to act , he “insisted ”
that Senior Leader file an anti- harassment complaint on her behalf with the A HU. Complainant
further c ontends that Senior Leader was slow t o comply but eventually did so in December 2022
and that the matter was still being in vestigated by AHU when Complainant was issued the
removal notice. Complainant maintains that she “ reasonably ” believed th at the time limit for
filing w as on hold until AHU completed its findings.
Complainant filed a second br ief wherein she argues that neither the Termina tion notice , nor
Senior Leader , nor her EEO training , notified her that follo wing a termination she had “ 45 days
to note an appeal [s ic].” Finally, Complainant argues that she did not reasonably suspec t
discrimination until July 14, 2023, and that she tim ely filed her formal complaint.
Complainant ’s remaining arguments address the merits of her underlying complaints and are th us
not r elevant to the instant appeal which addresses only the timelin ess of her EEO Counselor
contact .
The Agency on appeal ar gues that C ompla inant was informed about the relevant time periods on
numerous occ asions including her EEO training, the termination notice itself, and
correspondence from AHU which notified Co mplainant of the EEO deadline, and further
notified her that filin g a complaint with AHU did not prec lude filing a n EEO complaint at the
same time and did not toll any applica ble time limits .
STANDARD OF REVIEW
The Agency’s decision to dismiss a complaint is subj ect 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 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 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 ca se of a personnel action,
within forty -five (45) days of the effective date of the action. The record discloses that the latest
alleged discriminatory event raised in Claim #3 occurred on March 1, 2023, but Complainant did
not initiate contact with an EEO Counselor until May 17, 2023, which is beyond the forty- five
(45) day limitation pe riod.
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 th at the discriminatory
matter or personne l action occurred, that despite due diligence s 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 th e Commission. As noted in the FAD, t he
record shows that Complai nant took EEO training entitled Preventing and Addressing
Workplace Harassment on April 26, 2021, and again on August 22, 2022, and No Fear Act
training on June 22, 2021. This is suffi cient to establish that C omplainant had constr uctive
knowledge of the relevant time pe riods.
With regard to Complainant ’s contention that she mistakenly believed the time limits for
initiating EEO Counselor contact would be tolled during the AH U investig ation, w e note initially
that the Commission has consistently held that internal appeals or informal efforts to challenge
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. Se e Hosfor d v. Department of Vet erans Affairs , EEO C
Request No. 05890038 (June 9, 1989); Miller v. United States Postal Service , EEOC Request
No. 05880835 (February 2, 1989). Furthermore, the record show s that Complainant had
constructive knowledge of this fact. Sp ecifically, as the Agency p oints out on a ppeal, the
December 28, 2022, letter of acceptance from AHU notified Complainant that she may file an
EEO complaint concurrently with an AHU investigation.
The letter fur ther specifically notified Complainant that s hould she wish to file an EEO
complaint “you must contact ” the Agency EEO Office “ withing [sic] 45 calendar days of the
alleged discriminator y act or when you became aware of the di scrimina tory act. ” (Emphasis in
original) . The letter further notif ied Complainant that the AHU process was separate from the
EEO process, and that filing with AHU “does not prec lude a concurrent filing of an EEO
complaint , nor does it toll any time limits ass ociated with filing such a complaint.”
We note that Complain ant submi tted a brief with her appeal in which she raised the above
argument s and a month later submitted an additional brief . We further note that 29 C.F.R. §
1614.403(d) does not contemplate additional briefs beyond the initial brief. However, even
assumi ng we accept Complainant ’s subsequent brie f, we f ind Complainant ’s arguments
contained ther ein to be unpersua sive. Complainant argues that neither the Termination notice,
nor Senior Leader, nor her EEO training, notified her that following a termination s he had “ 45
days to note an appeal .” We note, howe ver, that the relevant issue is not the filing of an appeal
but EEO Counselor contact. Following a review of the record, we further note that the
Termination noti ce, signed by Complainant on March 1, 2023, clearly states on the second page ,
in the th ird p aragraph under “Instructions ,” that “if you believe discrimination . . . motivated this
action ” that Complainant may contact the Agency EEO office and that “ it is important to
understand that if you choose to pursue an EEO comp laint against the Dep artment, then you
must contact an EEO Counselor within forty five (45) calendar days of this action.” Furthermore ,
as noted above , Complainant was also notified of the relevant time periods when she received
her noti ce of acceptance from the Agency AHU in December 2023. In addition, we are
unpersuaded by Complainant ’s bare assertion that her EEO training omitted basic information
about timelines for filing. We therefore find Complainant ’s mistak en belief to be insuffi cient to
extend the time limits for filing.
With regard to Complainant ’s argument that she did not suspect discrimination until July 14,
2023, we note that t he Commission has adopted a reasonable suspicion standard to determine
when the forty -five (45) da y limita tion period is triggered. See Howard v. D ep't of the Navy ,
EEOC Appeal No. 01965648 (Feb. 11, 1999). Thus, the time limitation is not triggered until a complainant reasonab ly suspects discrimination, but before all the facts that support a charge of
discri mination have become apparent. Complainant contends that Senior L eader is “too
sophisticated an indi vidual to allow his prejudices to be on public display” and that it was only
“after a thorough review of [Senior Leader ’s] Termination Memorandum [t hat] Com plainant
concluded in late June 2023 [Senior Leader] hated her because she was Jewish, a graduate of an
elite Ivy League University in New York City , and in his opinion, a member of the powerful
Jewish lobby.”
Complainant, however, has not explai ned what cause d her , “in late June ,” to develop reasonable
suspicion that she previously did not have , other than the fact she received her Notice of Right to
File fr om the EEO office on June 14, 2023. Specif ically, Complainant has not explained what it
was about receiving a procedural notice from the Ag ency EE O office that so mehow cau sed her
to devel op reasonable suspicion about the allegedly discriminatory motivation of an individual
unrelated to that office.
Given that C omplainant conta cted an EEO Counselor on M ay 17, 2023, to allege, among othe r
things, that Senior Leader discriminated against her based on religion we remain unpersuaded by
Complainant ’s contention that she did not develop reasonable suspicion of Senior Leader ’s
religious discrimination until a month later. Because Complainant cannot sh ow that she only
developed reasonable suspicion within the 45- day pe riod prior to her EEO C ounselor contact, we
find instead that she reasonably suspected discrimination at the time she received her terminat ion
notice and hence her C ounselor co ntact is unt imely.
Finally, with regard to Complainant ’s argument that she timely filed her formal c omplaint, we
note that the Agency dismissed her complaint because of unt imely EEO Counselor contact, not
because of u ntimely filing of the formal complaint, and thus the fact that she timely filed her
formal complaint does not alter the outco me.
For the above reasons we find that Complainant has presented no persuasive arguments or
evidence warranting an extension of t he time limit for initiating EEO Counselor contac t.
CONCLUSION
The Dismissal 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 in volved 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 Fede ral Operations (OFO)
within thir ty (30) calendar days of receipt of this decision. If the party requesting
reconsideration elects to file a sta tement 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 M D-110), at Chap. 9 § VII.B
(Aug. 5, 2015).
Complainant should submit their request for reconsider ation, 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 ca n submit the ir request and arg uments 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 c omplainant’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 req uest 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 pa rty,
unless Complainant files their request via the E EOC 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 ci rcumstances preven ted the timely filing o f 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. Se e 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 rec eive this de cision. If you file a civil action,
you must name as the defendant in the complaint the person who is the offic ial 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 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 th e
administrative processing of your compl aint.
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 yo u 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 appointment of an att orney direct ly 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 Ac tion for the specific time limits).
FOR THE COMMISSION:
Carlton M. Hadden’s signature
Carlton M. Hadden, Director
Office of Federal Operations
April 25, 2024
Date | [
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"Miller v. United States Postal Service , EEOC Request No. 05880835 (February 2, 1989)",
"Howard v. D ep't of the Navy , EEOC Appeal No. 01965648 (Feb. 11, 1999)",
"29 C.F.R. § 1614.107(a)",
"29 C.F.R. § 1614.405(a)",
"29 C.... | [
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161 | https://www.eeoc.gov/sites/default/files/migrated_files/decisions/01a60243_r.txt | 01a60243_r.txt | TXT | text/plain | 18,521 | Shari Kamm v. National Aeronautics and Space Administration 01A60243 March 29, 2006 . Shari Kamm, Complainant, v. Michael Griffin, Administrator, National Aeronautics and Space Administration, Agency. | March 29, 2006 | Appeal Number: 01A60243
Case Facts:
Complainant filed a timely appeal with this Commission from the final
agency decision dated September 7, 2005, dismissing her formal EEO
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.
On April 18, 2005, complainant filed a formal complaint, claiming that
she was subjected to unlawful employment discrimination on the basis of
disability.
On September 7, 2005, the agency issued a final decision. Therein,
the agency determined that complainant's complaint was comprised of the
following claim:
[Complainant was] denied a reasonable accommodation for [her] disability
(Adult Attention Deficit Disorder) between May 2004 and September 2004,
which contributed to [her] receiving an official reprimand for rude and
obstructive behavior on November 17, 2004.<1>
The agency dismissed complainant's complaint on the grounds of untimely
EEO Counselor contact. Specifically, the agency found that complainant
initiated EEO Counselor contact on January 6, 2005. The agency stated
that to the extent complainant's complaint is comprised of the claim
of a reasonable accommodation denial, complainant acknowledged receipt
of the requested accommodation in September 2004. The agency asserted
that complainant's EEO contact on January 6, 2005, was outside of the
applicable time period. The agency further found that to the extent
complainant's complaint was comprised of a claim relating to receipt of
a reprimand on November 17, 2004, complainant's initial EEO Counselor
contact on January 6, 2005, was likewise untimely.
The agency also dismissed complainant's complaint on the alternative
grounds of mootness. Specifically, the agency stated that [b]y providing
[complainant] with an accommodation in the form of an office in September
2004, the effects of the prior alleged discriminatory acts have been
eradicated, and there is no likelihood of a recurrence.
On appeal, complainant, through her attorney, asserts that the agency's
dismissal of her complaint is improper. Specifically, complainant's
attorney (CA) asserts that on November 30, 2004, she filed an EEO
complaint as part of her NASA adverse action grievance. CA further
states that the Acting Director of the Human Resources Management
Division (HR1) advised [complainant] to bifurcate her due process
grievance from her EEO grievance and she instructed [complainant] to
resubmit them separately, which [complainant] did on December 23, 2004,
and January 6, 2005, respectively.
CA further asserts that this case is similar to Oest v. Department
of Justice, EEOC Appeal No. 01A53204 (September 13, 2005), in
which the Commission reversed the agency's final action dismissing
complainant's complaint on the grounds of untimely EEO Counselor contact.
Specifically, complainant asserts that [s]imilar to Oest, complainant
filed her complaint of discrimination jointly with another complaint
and was instructed to refile her complaint of discrimination with the
EEO office. However, the procedural delay that [the agency] imposed
by requiring bifurcation shortened [complainant's] time for filing
by a full 18 calendar days from the date of the discriminatory action.
This delay was beyond [complainant's] control, and it should be a reason
considered sufficient by the agency or the Commission' for extending
the 45-day time limit.
CA also asserts that the agency's dismissal of complainant's complaint
on the grounds that it has been rendered moot is improper. CA states
that the official reprimand remains in complainant's personnel file
and complainant has incurred legal fees in attempting to expunge the
letter of reprimand. CA further states that [f]ollowing a meeting
with [complainant] and her attorney, NASA Assistant Administrator for
External Relations...agreed to expunge the letter from [complainant's]
file but this will not occur before January 2006.
As a threshold matter, the Commission finds that the crux of complainant's
complaint is that she was subjected to discrimination when she received a
letter of reprimand. The record contains a copy of the EEO Counselor's
Report. Therein, the EEO Counselor expressly states that complainant's
claim of discrimination is that she was discriminated against based
on her disability...when she was issued a letter of reprimand ...She
said that the delay in granting her request for reasonable accommodation
contributed to the workplace conflict that results in her being unfairly
subjected to ...[the] subsequent reprimand by her supervisor.
In her formal complaint, complainant states in pertinent part, that the
resulting delay [in providing her with a reasonable accommodation] was
a contributing factor in any of my actions that...led [the agency], on
November 17, 2004, to issue an official reprimand for rude and obstructive
behavior. I contend that had [the agency] accommodated my disability in
May 2004, ...[the] adverse action would not have been taken against me.
Finally, on appeal, CA states in his brief that the adverse personnel
action in this case, issuance of the letter of reprimand, occurred on
November 17, 2004. Thus, we find that complainant's references to a
delay in the agency providing her with a reasonable accommodation are
background information in support of her claim that she was subjected
to discrimination when she received a letter of reprimand.
Dismissal on the Grounds of Mootness
The agency improperly dismissed complainant's complaint on the grounds
that it has been rendered moot. The regulation set forth at 29 C.F.R. §
1614.107(a)(5) provides for the dismissal of a complaint when the issues
raised therein are moot. To determine whether the issues raised in
complainant's complaint are moot, the factfinder must ascertain whether
(1) it can be said with assurance that there is no reasonable expectation
that the alleged violation will recur; and (2) interim relief or events
have completely and irrevocably eradicated the effects of the alleged
discrimination. See County of Los Angeles v. Davis, 440 U.S. 625, 631
(1979); Kuo v. Department of the Navy, EEOC Request No. 05970343 (July
10, 1998). When such circumstances exist, no relief is available and
no need for a determination of the rights of the parties is presented.
In the instant matter, the Commission notes that CA, in his brief in
support of complainant's appeal, dated October 19, 2005, asserts that
the agency agreed to expunge the letter of reprimand from complainant's
personnel file, but that this action would not occur before January 2006.
However, the record is devoid of evidence that the agency actually
removed the letter of reprimand from complainant's file. Based on these
circumstances, we find that the record does not reflect that interim
relief or events have completely and irrevocably eradicated the effects
of the alleged discrimination.
Dismissal for Untimely EEO Counselor Contact
Legal Analysis:
the Commission reversed the agency's final action dismissing
complainant's complaint on the grounds of untimely EEO Counselor contact.
Specifically, complainant asserts that [s]imilar to Oest, complainant
filed her complaint of discrimination jointly with another complaint
and was instructed to refile her complaint of discrimination with the
EEO office. However, the procedural delay that [the agency] imposed
by requiring bifurcation shortened [complainant's] time for filing
by a full 18 calendar days from the date of the discriminatory action.
This delay was beyond [complainant's] control, and it should be a reason
considered sufficient by the agency or the Commission' for extending
the 45-day time limit.
CA also asserts that the agency's dismissal of complainant's complaint
on the grounds that it has been rendered moot is improper. CA states
that the official reprimand remains in complainant's personnel file
and complainant has incurred legal fees in attempting to expunge the
letter of reprimand. CA further states that [f]ollowing a meeting
with [complainant] and her attorney, NASA Assistant Administrator for
External Relations...agreed to expunge the letter from [complainant's]
file but this will not occur before January 2006.
As a threshold matter, the Commission finds that the crux of complainant's
complaint is that she was subjected to discrimination when she received a
letter of reprimand. The record contains a copy of the EEO Counselor's
Report. Therein, the EEO Counselor expressly states that complainant's
claim of discrimination is that she was discriminated against based
on her disability...when she was issued a letter of reprimand ...She
said that the delay in granting her request for reasonable accommodation
contributed to the workplace conflict that results in her being unfairly
subjected to ...[the] subsequent reprimand by her supervisor.
In her formal complaint, complainant states in pertinent part, that the
resulting delay [in providing her with a reasonable accommodation] was
a contributing factor in any of my actions that...led [the agency], on
November 17, 2004, to issue an official reprimand for rude and obstructive
behavior. I contend that had [the agency] accommodated my disability in
May 2004, ...[the] adverse action would not have been taken against me.
Finally, on appeal, CA states in his brief that the adverse personnel
action in this case, issuance of the letter of reprimand, occurred on
November 17, 2004. Thus, we find that complainant's references to a
delay in the agency providing her with a reasonable accommodation are
background information in support of her claim that she was subjected
to discrimination when she received a letter of reprimand.
Dismissal on the Grounds of Mootness
The agency improperly dismissed complainant's complaint on the grounds
that it has been rendered moot. The regulation set forth at 29 C.F.R. §
1614.107(a)(5) provides for the dismissal of a complaint when the issues
raised therein are moot. To determine whether the issues raised in
complainant's complaint are moot, the factfinder must ascertain whether
(1) it can be said with assurance that there is no reasonable expectation
that the alleged violation will recur; and (2) interim relief or events
have completely and irrevocably eradicated the effects of the alleged
discrimination. See County of Los Angeles v. Davis, 440 U.S. 625, 631
(1979); Kuo v. Department of the Navy, EEOC Request No. 05970343 (July
10, 1998). When such circumstances exist, no relief is available and
no need for a determination of the rights of the parties is presented.
In the instant matter, the Commission notes that CA, in his brief in
support of complainant's appeal, dated October 19, 2005, asserts that
the agency agreed to expunge the letter of reprimand from complainant's
personnel file, but that this action would not occur before January 2006.
However, the record is devoid of evidence that the agency actually
removed the letter of reprimand from complainant's file. Based on these
circumstances, we find that the record does not reflect that interim
relief or events have completely and irrevocably eradicated the effects
of the alleged discrimination.
Dismissal for Untimely EEO Counselor Contact
EEOC Regulation 29 C.F.R. § 1614.105(a)(1) requires that complaints of
discrimination should be brought to the attention of the Equal Employment
Opportunity Counselor within forty-five (45) days of the date of the
matter alleged to be discriminatory or, in the case of a personnel
action, within forty-five (45) days of the effective date of the action.
The Commission has adopted a "reasonable suspicion" standard (as opposed
to a "supportive facts" standard) to determine when the forty-five (45)
day limitation period is triggered. See Howard v. 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.
In the instant matter, the Commission is unable to determine whether
complainant timely initiated EEO Counselor contact. Through her
attorney, complainant asserts that she timely initiated EEO Counselor
contact on November 30, 2004, and that had [the agency] not instructed
[complainant] to refile her complaint with the [agency's] EEO office,
[complainant's] initial filing on November 30, 2004, would have been
well in advance of the deadline. The Commission notes that the instant
matter is distinguishable from Oest, which is cited by CA in his brief
in support of complainant's appeal. In Oest, the Commission found
that the complainant claimed that he was unaware of the applicable
time limits. In the instant matter, however, complainant does not claim
that she was unaware of the time limits. Instead, complainant claims
that she timely initiated EEO Counselor contact on November 30, 2004,
and that [the agency's] own procedural delay of bifurcation should not
have placed the burden of a shortened filing period on the complainant.
Nonetheless, the Commission is unable to determine whether complainant
timely initiated EEO Counselor contact. The record contains a copy of
a letter to CA from HR1 dated December 10, 2004. Therein, HR1 states
that this acknowledges receipt of your letter of November 30, 2004,
in which you submitted a grievance on behalf of [complainant]...Your
letter was addressed to [a named individual, A1], but has been forwarded
to me... HR1 further states that [y]our letter was timely filed
under the NASA grievance System. However, an issue you raised is not
covered. Specifically, your allegation that [complainant] has failed
to accommodate [complainant's] disability is subject to review under
the Federal employee discrimination complaint procedure. HR1 further
informed CA that complainant may file a complaint of discrimination
within 45 days of the alleged discriminatory event and to contact the
agency's EEO office for further information on this process.
The Commission notes that the record does not contain a copy of CA's
letter to A1 dated November 30, 2004. In addition, the record is devoid
of information as to whether A1 was an EEO Counselor or an individual
logically connected to the EEO process. The Commission has held that in
order to establish EEO Counselor contact, an individual must contact an
agency official logically connected to the EEO process and exhibit and
intent to begin the process. See Allen v. United States Postal Service,
EEOC Request No. 05950933 (July 8, 1996).
In summary, the agency's dismissal of the instant complaint on the grounds
of mootness was improper and is REVERSED. The agency's dismissal of the
instant complaint on the alternative grounds of untimely EEO Counselor
contact is VACATED and we REMAND this matter to the agency for further
processing in accordance with the ORDER below.
ORDER
The agency is ORDERED to take the following action:
Within thirty (30) calendar days from the date this decision becomes
final, the agency shall supplement the record with a copy of CA's letter
to A1 dated November 30, 2004. The agency shall also supplement the
record with affidavit and/or documentary evidence indicating whether
A1 was an EEO Counselor or an individual logically connected to the
EEO process. Thereafter, the agency should issue a new final decision
dismissing complainant's complaint or a letter accepting complainant's
complaint for investigation.
A copy of the agency's new final decision dismissing complainant's
complaint or the letter accepting complainant's complaint for
investigation 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. | Shari Kamm v. National Aeronautics and Space Administration
01A60243
March 29, 2006
.
Shari Kamm,
Complainant,
v.
Michael Griffin,
Administrator,
National Aeronautics and Space Administration,
Agency.
Appeal No. 01A60243
Agency No. NCN-05-HQ-A024
DECISION
Complainant filed a timely appeal with this Commission from the final
agency decision dated September 7, 2005, dismissing her formal EEO
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.
On April 18, 2005, complainant filed a formal complaint, claiming that
she was subjected to unlawful employment discrimination on the basis of
disability.
On September 7, 2005, the agency issued a final decision. Therein,
the agency determined that complainant's complaint was comprised of the
following claim:
[Complainant was] denied a reasonable accommodation for [her] disability
(Adult Attention Deficit Disorder) between May 2004 and September 2004,
which contributed to [her] receiving an official reprimand for rude and
obstructive behavior on November 17, 2004.<1>
The agency dismissed complainant's complaint on the grounds of untimely
EEO Counselor contact. Specifically, the agency found that complainant
initiated EEO Counselor contact on January 6, 2005. The agency stated
that to the extent complainant's complaint is comprised of the claim
of a reasonable accommodation denial, complainant acknowledged receipt
of the requested accommodation in September 2004. The agency asserted
that complainant's EEO contact on January 6, 2005, was outside of the
applicable time period. The agency further found that to the extent
complainant's complaint was comprised of a claim relating to receipt of
a reprimand on November 17, 2004, complainant's initial EEO Counselor
contact on January 6, 2005, was likewise untimely.
The agency also dismissed complainant's complaint on the alternative
grounds of mootness. Specifically, the agency stated that [b]y providing
[complainant] with an accommodation in the form of an office in September
2004, the effects of the prior alleged discriminatory acts have been
eradicated, and there is no likelihood of a recurrence.
On appeal, complainant, through her attorney, asserts that the agency's
dismissal of her complaint is improper. Specifically, complainant's
attorney (CA) asserts that on November 30, 2004, she filed an EEO
complaint as part of her NASA adverse action grievance. CA further
states that the Acting Director of the Human Resources Management
Division (HR1) advised [complainant] to bifurcate her due process
grievance from her EEO grievance and she instructed [complainant] to
resubmit them separately, which [complainant] did on December 23, 2004,
and January 6, 2005, respectively.
CA further asserts that this case is similar to Oest v. Department
of Justice, EEOC Appeal No. 01A53204 (September 13, 2005), in
which the Commission reversed the agency's final action dismissing
complainant's complaint on the grounds of untimely EEO Counselor contact.
Specifically, complainant asserts that [s]imilar to Oest, complainant
filed her complaint of discrimination jointly with another complaint
and was instructed to refile her complaint of discrimination with the
EEO office. However, the procedural delay that [the agency] imposed
by requiring bifurcation shortened [complainant's] time for filing
by a full 18 calendar days from the date of the discriminatory action.
This delay was beyond [complainant's] control, and it should be a reason
considered sufficient by the agency or the Commission' for extending
the 45-day time limit.
CA also asserts that the agency's dismissal of complainant's complaint
on the grounds that it has been rendered moot is improper. CA states
that the official reprimand remains in complainant's personnel file
and complainant has incurred legal fees in attempting to expunge the
letter of reprimand. CA further states that [f]ollowing a meeting
with [complainant] and her attorney, NASA Assistant Administrator for
External Relations...agreed to expunge the letter from [complainant's]
file but this will not occur before January 2006.
As a threshold matter, the Commission finds that the crux of complainant's
complaint is that she was subjected to discrimination when she received a
letter of reprimand. The record contains a copy of the EEO Counselor's
Report. Therein, the EEO Counselor expressly states that complainant's
claim of discrimination is that she was discriminated against based
on her disability...when she was issued a letter of reprimand ...She
said that the delay in granting her request for reasonable accommodation
contributed to the workplace conflict that results in her being unfairly
subjected to ...[the] subsequent reprimand by her supervisor.
In her formal complaint, complainant states in pertinent part, that the
resulting delay [in providing her with a reasonable accommodation] was
a contributing factor in any of my actions that...led [the agency], on
November 17, 2004, to issue an official reprimand for rude and obstructive
behavior. I contend that had [the agency] accommodated my disability in
May 2004, ...[the] adverse action would not have been taken against me.
Finally, on appeal, CA states in his brief that the adverse personnel
action in this case, issuance of the letter of reprimand, occurred on
November 17, 2004. Thus, we find that complainant's references to a
delay in the agency providing her with a reasonable accommodation are
background information in support of her claim that she was subjected
to discrimination when she received a letter of reprimand.
Dismissal on the Grounds of Mootness
The agency improperly dismissed complainant's complaint on the grounds
that it has been rendered moot. The regulation set forth at 29 C.F.R. §
1614.107(a)(5) provides for the dismissal of a complaint when the issues
raised therein are moot. To determine whether the issues raised in
complainant's complaint are moot, the factfinder must ascertain whether
(1) it can be said with assurance that there is no reasonable expectation
that the alleged violation will recur; and (2) interim relief or events
have completely and irrevocably eradicated the effects of the alleged
discrimination. See County of Los Angeles v. Davis, 440 U.S. 625, 631
(1979); Kuo v. Department of the Navy, EEOC Request No. 05970343 (July
10, 1998). When such circumstances exist, no relief is available and
no need for a determination of the rights of the parties is presented.
In the instant matter, the Commission notes that CA, in his brief in
support of complainant's appeal, dated October 19, 2005, asserts that
the agency agreed to expunge the letter of reprimand from complainant's
personnel file, but that this action would not occur before January 2006.
However, the record is devoid of evidence that the agency actually
removed the letter of reprimand from complainant's file. Based on these
circumstances, we find that the record does not reflect that interim
relief or events have completely and irrevocably eradicated the effects
of the alleged discrimination.
Dismissal for Untimely EEO Counselor Contact
EEOC Regulation 29 C.F.R. § 1614.105(a)(1) requires that complaints of
discrimination should be brought to the attention of the Equal Employment
Opportunity Counselor within forty-five (45) days of the date of the
matter alleged to be discriminatory or, in the case of a personnel
action, within forty-five (45) days of the effective date of the action.
The Commission has adopted a "reasonable suspicion" standard (as opposed
to a "supportive facts" standard) to determine when the forty-five (45)
day limitation period is triggered. See Howard v. 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.
In the instant matter, the Commission is unable to determine whether
complainant timely initiated EEO Counselor contact. Through her
attorney, complainant asserts that she timely initiated EEO Counselor
contact on November 30, 2004, and that had [the agency] not instructed
[complainant] to refile her complaint with the [agency's] EEO office,
[complainant's] initial filing on November 30, 2004, would have been
well in advance of the deadline. The Commission notes that the instant
matter is distinguishable from Oest, which is cited by CA in his brief
in support of complainant's appeal. In Oest, the Commission found
that the complainant claimed that he was unaware of the applicable
time limits. In the instant matter, however, complainant does not claim
that she was unaware of the time limits. Instead, complainant claims
that she timely initiated EEO Counselor contact on November 30, 2004,
and that [the agency's] own procedural delay of bifurcation should not
have placed the burden of a shortened filing period on the complainant.
Nonetheless, the Commission is unable to determine whether complainant
timely initiated EEO Counselor contact. The record contains a copy of
a letter to CA from HR1 dated December 10, 2004. Therein, HR1 states
that this acknowledges receipt of your letter of November 30, 2004,
in which you submitted a grievance on behalf of [complainant]...Your
letter was addressed to [a named individual, A1], but has been forwarded
to me... HR1 further states that [y]our letter was timely filed
under the NASA grievance System. However, an issue you raised is not
covered. Specifically, your allegation that [complainant] has failed
to accommodate [complainant's] disability is subject to review under
the Federal employee discrimination complaint procedure. HR1 further
informed CA that complainant may file a complaint of discrimination
within 45 days of the alleged discriminatory event and to contact the
agency's EEO office for further information on this process.
The Commission notes that the record does not contain a copy of CA's
letter to A1 dated November 30, 2004. In addition, the record is devoid
of information as to whether A1 was an EEO Counselor or an individual
logically connected to the EEO process. The Commission has held that in
order to establish EEO Counselor contact, an individual must contact an
agency official logically connected to the EEO process and exhibit and
intent to begin the process. See Allen v. United States Postal Service,
EEOC Request No. 05950933 (July 8, 1996).
In summary, the agency's dismissal of the instant complaint on the grounds
of mootness was improper and is REVERSED. The agency's dismissal of the
instant complaint on the alternative grounds of untimely EEO Counselor
contact is VACATED and we REMAND this matter to the agency for further
processing in accordance with the ORDER below.
ORDER
The agency is ORDERED to take the following action:
Within thirty (30) calendar days from the date this decision becomes
final, the agency shall supplement the record with a copy of CA's letter
to A1 dated November 30, 2004. The agency shall also supplement the
record with affidavit and/or documentary evidence indicating whether
A1 was an EEO Counselor or an individual logically connected to the
EEO process. Thereafter, the agency should issue a new final decision
dismissing complainant's complaint or a letter accepting complainant's
complaint for investigation.
A copy of the agency's new final decision dismissing complainant's
complaint or the letter accepting complainant's complaint for
investigation 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
March 29, 2006
__________________
Date
1In its final decision, the agency also
determined that complainant's complaint also included the following
claim: [i]n retaliation for [complainant's] EEO activity, and due to
[complainant's] sexual orientation or perceived sexual orientation,
[complainant's] security clearance was suspended on May 2, 2005.
The agency stated that complainant did not receive EEO Counseling on
this issue and that it was not like or related to the issue on which
complainant received EEO counseling . The agency therefore instructed
complainant to contact the EEO office to initiate EEO counseling.
Because the agency has not taken final action on this issue, we find it
is not properly before us and we decline to address it herein.
| [
"Kuo v. Department of the Navy, EEOC Request No. 05970343 (July 10, 1998)",
"Howard v. Department of the Navy, EEOC Request No. 05970852 (February 11, 1999)",
"Allen v. United States Postal Service, EEOC Request No. 05950933 (July 8, 1996)",
"440 U.S. 625",
"29 C.F.R. § 1614.107(a)",
"29 C.F.R. § 1614.105... | [
-0.0005511196213774383,
0.011417862959206104,
-0.006796957924962044,
0.07205649465322495,
-0.006259789690375328,
0.08379758149385452,
0.050525035709142685,
0.00750089343637228,
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0.08240479975938797,
0.03533356264233589,
-0.0040377904660999775,
0.015404876321554184,
0.... |
162 | https://www.eeoc.gov/sites/default/files/migrated_files/decisions/0120152316.txt | 0120152316.txt | TXT | text/plain | 9,442 | Annice F.,1 Complainant, v. Jacob J. Lew, Secretary, Department of the Treasury (Internal Revenue Service), Agency. | July 9, 2015 | Appeal Number: 0120152316
Background:
At the time of events giving rise to this complaint, Complainant worked as a Facilities Management Assistant, GS-7, at the Agency's Internal Revenue Service, Facilities Management Security Services, in Fresno, California.
On May 12, 2015, Complainant filed a formal complaint alleging that she was discriminated against based on her race (Native American and African American) and reprisal for prior equal employment opportunity (EEO) activity when the Agency improperly processed one or more of her prior EEO claims.2 Specifically, Complainant contended that the EEO office falsified documents, purposely excluded recent allegations from a counseling report, disclosed personal information among IRS employees outside the scope of her case, provided false alternative dispute resolution, and included a closed allegation with the knowledge that doing so could cause a dismissal. In her complaint, Complainant explicitly alleged that the matter complained of was that EEO office failed to handle her allegation of discrimination and took adverse action against her, and that as a result of this all her recent allegations were dismissed with an appellate decision affirming the dismissal.
Regarding the disclosure, the EEO counselor wrote in her report that Complainant sent an email on April 28, 2015, with the subject "Tax papers received today - reprisal." While the email is not in the record, the EEO counselor wrote that Complainant relayed that a previous EEO counselor shared her telephone number with someone setting up audits and there was reprisal because the audit did not come about until she completed mediation on a prior EEO complaint in September 2014.
The Agency dismissed the complaint for alleging dissatisfaction with the processing of a previously filed complaint.
On appeal, Complainant writes that on September 5, 2014, she learned that EEO personnel provided personal information from her file - a phone number to aid the tax audit. She contends the tax audit would not have occurred had she not initiated EEO contact in July 2014.
The complaint file in a prior case - EEOC Appeal No. 0120150602 contains various writings by Complainant which shed some light on her contention. Therein, Complainant indicated that she learned on September 5, 2014, that the tax auditor had the personal cellular telephone number her co-worker or former co-worker. Complainant contended she shared this number with her former manager and EEO counselor, and her former manager denied sharing it with anyone. Complainant wrote that the coworker's telephone number was private, and he directed it not be shared except with her children, parents, and siblings. Complainant appears to suggest that given the above, she believed the number was shared by the EEO counselor.
The record reflects that the Agency determined Complainant owned back taxes of $5,524.88. According to Complainant, the Agency determined that she improperly claimed dependents.
Legal Analysis:
EEOC Regulation 29 C.F.R. § 1614.107(a)(8) provides that prior to a request for a hearing in a case, the Agency shall dismiss an entire complaint that alleges dissatisfaction with the processing of a previously filed complaint. Complainant's contention that EEO employees falsified documents, excluded recent allegations from the counselor's report, provided false alternative dispute resolution (ADR), and included a closed allegation with knowledge that this would cause a dismissal fall within the scope of this regulation.
We also find that the same is true regarding the EEO counselor allegedly breaching the confidentiality of Complainant's EEO file by sharing the private telephone number of a co-worker with a tax auditor who was setting up audits. Further, this contention fails to state a claim. Even if this sharing occurred, we find it would not reasonably likely deter EEO activity because it is very likely the auditor could have readily used another method to have gotten in touch with the co-worker. 29 C.F.R. § 1614.107(a)(8). Finally, to the extent Complainant is attempting to utilize the EEO process to challenge the finding of the tax audit that she owed back taxes, this fails to state a claim because it constitutes a collateral attack against the tax review appeal process for tax claims. Wesley Owens-Bey v. United States Postal Service, EEOC Appeal No. 0120131976 (Aug. 22, 2013)(applying the principle of collateral attack to a tax issue, finding the matter needed to be resolved with the Internal Revenue Service, not in the EEO process).
Final Decision:
Accordingly, the FAD is AFFIRMED. | Annice F.,1
Complainant,
v.
Jacob J. Lew,
Secretary,
Department of the Treasury
(Internal Revenue Service),
Agency.
Appeal No. 0120152316
Agency No. IRS-15-1219-F
DECISION
On July 9, 2015, Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from a final Agency decision (FAD) dated May 18, 2015, and received by her on July 1, 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.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Facilities Management Assistant, GS-7, at the Agency's Internal Revenue Service, Facilities Management Security Services, in Fresno, California.
On May 12, 2015, Complainant filed a formal complaint alleging that she was discriminated against based on her race (Native American and African American) and reprisal for prior equal employment opportunity (EEO) activity when the Agency improperly processed one or more of her prior EEO claims.2 Specifically, Complainant contended that the EEO office falsified documents, purposely excluded recent allegations from a counseling report, disclosed personal information among IRS employees outside the scope of her case, provided false alternative dispute resolution, and included a closed allegation with the knowledge that doing so could cause a dismissal. In her complaint, Complainant explicitly alleged that the matter complained of was that EEO office failed to handle her allegation of discrimination and took adverse action against her, and that as a result of this all her recent allegations were dismissed with an appellate decision affirming the dismissal.
Regarding the disclosure, the EEO counselor wrote in her report that Complainant sent an email on April 28, 2015, with the subject "Tax papers received today - reprisal." While the email is not in the record, the EEO counselor wrote that Complainant relayed that a previous EEO counselor shared her telephone number with someone setting up audits and there was reprisal because the audit did not come about until she completed mediation on a prior EEO complaint in September 2014.
The Agency dismissed the complaint for alleging dissatisfaction with the processing of a previously filed complaint.
On appeal, Complainant writes that on September 5, 2014, she learned that EEO personnel provided personal information from her file - a phone number to aid the tax audit. She contends the tax audit would not have occurred had she not initiated EEO contact in July 2014.
The complaint file in a prior case - EEOC Appeal No. 0120150602 contains various writings by Complainant which shed some light on her contention. Therein, Complainant indicated that she learned on September 5, 2014, that the tax auditor had the personal cellular telephone number her co-worker or former co-worker. Complainant contended she shared this number with her former manager and EEO counselor, and her former manager denied sharing it with anyone. Complainant wrote that the coworker's telephone number was private, and he directed it not be shared except with her children, parents, and siblings. Complainant appears to suggest that given the above, she believed the number was shared by the EEO counselor.
The record reflects that the Agency determined Complainant owned back taxes of $5,524.88. According to Complainant, the Agency determined that she improperly claimed dependents.
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R. § 1614.107(a)(8) provides that prior to a request for a hearing in a case, the Agency shall dismiss an entire complaint that alleges dissatisfaction with the processing of a previously filed complaint. Complainant's contention that EEO employees falsified documents, excluded recent allegations from the counselor's report, provided false alternative dispute resolution (ADR), and included a closed allegation with knowledge that this would cause a dismissal fall within the scope of this regulation.
We also find that the same is true regarding the EEO counselor allegedly breaching the confidentiality of Complainant's EEO file by sharing the private telephone number of a co-worker with a tax auditor who was setting up audits. Further, this contention fails to state a claim. Even if this sharing occurred, we find it would not reasonably likely deter EEO activity because it is very likely the auditor could have readily used another method to have gotten in touch with the co-worker. 29 C.F.R. § 1614.107(a)(8). Finally, to the extent Complainant is attempting to utilize the EEO process to challenge the finding of the tax audit that she owed back taxes, this fails to state a claim because it constitutes a collateral attack against the tax review appeal process for tax claims. Wesley Owens-Bey v. United States Postal Service, EEOC Appeal No. 0120131976 (Aug. 22, 2013)(applying the principle of collateral attack to a tax issue, finding the matter needed to be resolved with the Internal Revenue Service, not in the EEO process).
Accordingly, the FAD 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
December 15, 2015
__________________
Date
2 In its FAD, the Agency did not capture the reprisal basis. Complainant raised it in EEO counseling, and does so again on appeal.
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163 | https://www.eeoc.gov/sites/default/files/migrated_files/decisions/0120150096.r.txt | 0120150096.r.txt | TXT | text/plain | 9,629 | Lawrence V. Wilder, Sr., Complainant, v. Eric H. Holder, Jr., Attorney General, Department of Justice (Executive Office of the U.S. Attorneys), Agency. | September 4, 2014 | Appeal Number: 0120150096
Case Facts:
The record reflects the following chronology of events. In August 2014, Complainant contacted the Agency's EEO office via telephone and wanted to file an EEO complaint. In an email to Complainant dated September 4, 2014, an Agency EEO Specialist advised him to complete the attached pre-complaint paperwork and that upon receipt of the completed paperwork an EEO Counselor would be assigned to conduct EEO Counseling. On September 8, 2014, the Agency EEO Specialist acknowledged receipt of Complainant's pre-complaint paperwork.
In a letter to Complainant, dated September 16, 2014, the Agency's Assistant Director of EEO (Assistant Director) informed Complainant that the Agency would not continue to process Complainant's EEO claims. Specifically, the Assistant Director asserted: "[b]ased on a thorough review of [his] pre-complaint, it appears [Complainant] does not make any allegations that [the Agency] took any employment action against [him] that affected a term or condition of [his] employment. According to [his] pre-complaint, no employer-employee relationship exists or has existed between [him] and [the Agency]. Therefore, we are not the correct EEO office for [him] to contact to pursue an employment discrimination claim." The letter did not contain any appeal rights to the Commission's Office of Federal Operations (OFO).
In a subsequent letter to Complainant dated September 26, 2014, the Assistant Director informed him that it had received his faxes and further asserted "[a]s we informed [Complainant] in our letter dated September 16, 2014, and on the telephone, we are not the correct office for [him] to contact to pursue an employment discrimination claim. Our office only processes discrimination complaints filed by employees or applicants for employment of [the Agency]. Because no employer-employee relationship exists or existed between [him] and [the Agency], this office cannot process [his] employment discrimination claim."
The September 26, 2014 letter also provided Complainant with contact information to other federal agencies such as the Department of Labor.
In a letter to OFO, Complainant asserts that the Agency "failed to process" his formal complaint. In addition, Complainant asserts that he was not provided with proper appeal rights.
Legal Analysis:
the Commission's Office of Federal Operations (OFO).
In a subsequent letter to Complainant dated September 26, 2014, the Assistant Director informed him that it had received his faxes and further asserted "[a]s we informed [Complainant] in our letter dated September 16, 2014, and on the telephone, we are not the correct office for [him] to contact to pursue an employment discrimination claim. Our office only processes discrimination complaints filed by employees or applicants for employment of [the Agency]. Because no employer-employee relationship exists or existed between [him] and [the Agency], this office cannot process [his] employment discrimination claim."
The September 26, 2014 letter also provided Complainant with contact information to other federal agencies such as the Department of Labor.
In a letter to OFO, Complainant asserts that the Agency "failed to process" his formal complaint. In addition, Complainant asserts that he was not provided with proper appeal rights.
ANALYSIS AND FINDINGS
We note that the Agency did not issue a final decision in the instant matter. However, the Agency in its letters to Complainant determined that he was not an Agency employee or applicant for employment and therefore it lacked jurisdiction to process his claims.
In the instant matter, we find that Complainant has not been afforded the opportunity to participate in EEO Counseling or file a formal EEO complaint. We find that it was improper of the Agency to decline EEO Counseling and the opportunity to file a formal EEO complaint. See Complainant v. Gen. Serv. Admin., EEOC Appeal No. 01923534 (Jan. 7, 1993) (remanding matter to Agency for pre-complaint counseling after Agency did not afford a complainant the opportunity to participate in pre-complaint EEO counseling). Thus, we REMAND the instant matter for further processing in accordance with the Order below.
ORDER
Within thirty (30) calendar days from the date this decision becomes final, the Agency shall notify Complainant of his right to EEO counseling. EEO Counseling shall not exceed thirty days, unless Complainant and the Agency agree in writing to extend EEO Counseling for an additional period of no more than sixty days. Thereafter, the Agency shall issue Complainant a notice of right to file a formal complaint.
A copy of the Agency's notice to Complainant of his right to EEO Counseling and a copy of the Agency's notice to Complainant of his right to file a formal EEO complaint must be sent to the Compliance Officer as listed 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. | Lawrence V. Wilder, Sr.,
Complainant,
v.
Eric H. Holder, Jr.,
Attorney General,
Department of Justice
(Executive Office of the U.S. Attorneys),
Agency.
Appeal No. 0120150096
DECISION
The record reflects the following chronology of events. In August 2014, Complainant contacted the Agency's EEO office via telephone and wanted to file an EEO complaint. In an email to Complainant dated September 4, 2014, an Agency EEO Specialist advised him to complete the attached pre-complaint paperwork and that upon receipt of the completed paperwork an EEO Counselor would be assigned to conduct EEO Counseling. On September 8, 2014, the Agency EEO Specialist acknowledged receipt of Complainant's pre-complaint paperwork.
In a letter to Complainant, dated September 16, 2014, the Agency's Assistant Director of EEO (Assistant Director) informed Complainant that the Agency would not continue to process Complainant's EEO claims. Specifically, the Assistant Director asserted: "[b]ased on a thorough review of [his] pre-complaint, it appears [Complainant] does not make any allegations that [the Agency] took any employment action against [him] that affected a term or condition of [his] employment. According to [his] pre-complaint, no employer-employee relationship exists or has existed between [him] and [the Agency]. Therefore, we are not the correct EEO office for [him] to contact to pursue an employment discrimination claim." The letter did not contain any appeal rights to the Commission's Office of Federal Operations (OFO).
In a subsequent letter to Complainant dated September 26, 2014, the Assistant Director informed him that it had received his faxes and further asserted "[a]s we informed [Complainant] in our letter dated September 16, 2014, and on the telephone, we are not the correct office for [him] to contact to pursue an employment discrimination claim. Our office only processes discrimination complaints filed by employees or applicants for employment of [the Agency]. Because no employer-employee relationship exists or existed between [him] and [the Agency], this office cannot process [his] employment discrimination claim."
The September 26, 2014 letter also provided Complainant with contact information to other federal agencies such as the Department of Labor.
In a letter to OFO, Complainant asserts that the Agency "failed to process" his formal complaint. In addition, Complainant asserts that he was not provided with proper appeal rights.
ANALYSIS AND FINDINGS
We note that the Agency did not issue a final decision in the instant matter. However, the Agency in its letters to Complainant determined that he was not an Agency employee or applicant for employment and therefore it lacked jurisdiction to process his claims.
In the instant matter, we find that Complainant has not been afforded the opportunity to participate in EEO Counseling or file a formal EEO complaint. We find that it was improper of the Agency to decline EEO Counseling and the opportunity to file a formal EEO complaint. See Complainant v. Gen. Serv. Admin., EEOC Appeal No. 01923534 (Jan. 7, 1993) (remanding matter to Agency for pre-complaint counseling after Agency did not afford a complainant the opportunity to participate in pre-complaint EEO counseling). Thus, we REMAND the instant matter for further processing in accordance with the Order below.
ORDER
Within thirty (30) calendar days from the date this decision becomes final, the Agency shall notify Complainant of his right to EEO counseling. EEO Counseling shall not exceed thirty days, unless Complainant and the Agency agree in writing to extend EEO Counseling for an additional period of no more than sixty days. Thereafter, the Agency shall issue Complainant a notice of right to file a formal complaint.
A copy of the Agency's notice to Complainant of his right to EEO Counseling and a copy of the Agency's notice to Complainant of his right to file a formal EEO complaint must be sent to the Compliance Officer as listed 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
February 12, 2015
__________________
Date
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164 | https://www.eeoc.gov/sites/default/files/decisions/2024_12_09/2022004791.pdf | 2022004791.pdf | PDF | application/pdf | 28,392 | Chere S.,1 Complainant, v. Lloyd J. Austin III, Secretary Department of Defense (Defense Health Agency), Agency. | August 31, 2022 | Appeal Number: 2022004791
Complaint Allegations:
in her complaint had “access to and the responsibility to process the final agency decision” creating a conflict of interest. The Agency noted that the EEO Director identified in Complainant’s complaint had retired prior to the issuance of the decision and had no influence over the matter. Further, the Agency contracted with a private firm to render the final agency decision in this case. In EEO Management Directive for 29 C.F.R. Part 1614 (EEO MD -110), Chapter 1, IV, “Avoiding Conflicts of Interest” the Commission has recognized that in the federal sector process Agency heads must manage the dual obligations of carrying out fair and impartial investigations of complaints that result in final agency decisions as to whether discrimination has occurred and defending the agency against claims of employment discrimination. The Commission maintains tha t a clear separation between the agency's EEO complaint program and the agency's defensive function is thus the essential underpinning of a fair and impartial investigation, enhancing the credibility of the EEO office and the integrity of the EEO complaint s process. Id. at § IV.C. In Junior M. v. Central Intelligence Agency, EEOC Request No. 2019003175 (Sept. 26, 2019), the Commission stated that an effective EEO program must be impartial, both in appearance and in existence and reflect EEOC's endeavor to keep the advocacy function out of federal sector EEO offices due to their unique obligations and responsibilities. Here, we emphasize that Complainant’s complaint was investigated outside of the Agency under its conflict- of-interest rules by the Washington Headquarters Service. There is no evidence in the record that the EEO Director who was identified in the complaint was involved in the investigat ion or final agency decision process. Furthermore, the record demonstrates that the Agency contrac ted an outside party to draft the final agency decision. To the extent Complainant argues that the decision was written by someone who is named in her complaint, we do not find that to be true as the individual Complainant identifies as the writer of the decision is not mentioned in the record as either a responsible management official or a witness. Under the specific circumstances of this case, we do not find that it is necessary to vacate the Agency's decision. The investigative process and the issua nce of the final agency decision were properly handled outside of the Agency, and we find that there is sufficient evidence in the record on which to base our decision addressing Complainant’s claims. We further note that because this is an appeal of an A gency decision without a hearing, we will review it de novo. We will therefore proceed to address Complainant's claims on the merits. Per Se Reprisal The Commission has held that the actions of a supervisor may be considered “per se” reprisal when the supervisor intimidates an employee and interferes with the employee's EEO activity in any manner. See Israel F. v. U.S. Postal Serv., EEOC Appeal No. 0120181863 (Sept. 26, 2019) (citing Binseel v. Dep't of the Army , EEOC Request No. 05970584 (Oct. 8, 1998). Comments that, on their face, discourage an employee from participating in the EEO process violate the letter and spirit of the EEOC regulations and evidence a per se violation of the law. Id . Central to a finding of per se reprisal is that the conduct is reasonably likely to have a chilling effect on the complainant or a reasonable employee from engaging in, or pursuing, protected activity. Id . (citing Christeen H. v. U.S. Postal Serv., EEO C Appeal No. 0120162478 (June 14, 2018)). Here, Complainant alleged that the EEO Director stated to S1, that he did not care if Complainant filed an EEO complaint because his office would process it. Complainant was not present when the comment was made nor is there any evidence demonstrating that the comment was intended to dissuade Complainant from filing an EEO complaint. The EEO Director explained that he was simply indicating that if Complainant exercised her right to file an EEO complaint, the offi ce would process it as it would a complaint filed by anyone else. While the record demonstrates that the EEO Director may have had a brusque style of communication, there is no evidence showing that this was an attempt to intimidate Complainant or otherw ise interfere with Complainant’s participation in the EEO process. As such, we find that Complainant has not established that the Agency's conduct was per se reprisal. Disparate Treatment – Claim (2) To prevail in a disparate treatment claim, Complaina nt must satisfy the three -part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Complainant must initially establish a prima facie case by demonstrating that she was subjected to an adverse employm ent action under circumstances that would support an inference of discrimination. Furnco Constr. Corp. 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. Tex. Dep’t of Cmty. Affairs v. Burdine , 450 U.S. 248, 253 (1981). To ultimately prevail, Complainant must prove, by a preponderance of t he evidence, that the Agency's explanation is pretextual. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 120 S. Ct. 2097 (2000); St. Mary’s Honor Ctr. v. Hicks , 509 U.S. 502, 519 (1993). To establish a prima facie case of discrimination, a comp lainant must show that: (1) she is a member of a protected group; (2) she suffered an adverse employment action; and (3) the circumstances give rise to an inference of discrimination. We note that, although a complainant bears the burden of establishing a “prima facie” case, Tex. Dep't of Cmty. Affairs v. Burdine , 450 U.S. 248, 252- 53 (1981), the requirements are “minimal,” St. Mary's Honor Ctr. v. Hicks , 509 U.S. 502, 506 (1993), and complainant's burden is “not onerous.” Burdine , 450 U.S. at 253. Complainant may establish a prima facie case of reprisal by showing that she (1) engaged in a protected activity; (2) the Agency was aware of her protected ac tivity; (3) Complainant was subjected to adverse treatment by the Agency; and (4) a nexus exists between the protected activity and the adverse action. Whitmire v. Dep't of the Air Force , EEOC Appeal No. 01A00340 (Sept. 25, 2010). Regarding claim ( 2), Co mplainant failed to establish a prima facie case of discrimination or reprisal. Complainant failed to identify any individuals outside of her protected classes who were treated more favorably. Management identified an African American female co -worker who performed the same GS -13 duties as Complainant. Additionally, Complainant claimed that she was ordered to perform duties outside of her PD from October 2017 to May 2019; however, Complainant only informed management of her intent to file an EEO complain t in April 2019. Furthermore, Complainant has not shown a nexus between the alleged conduct and her protected EEO activity. Complainant has not presented any evidence otherwise raising and inference of discrimination or reprisal. Even assuming Complaina nt had established a prima facie case of discrimination and reprisal,
Background:
At the time of even ts giving rise to this complaint, Complainant worked as a n Equal
Employment Opportunity Manager, GS-0260- 13, in the Agency’s EEO Office at Walter Reed
National Military Medical Center in Bethesda, Maryland.
On October 1, 2019, Complainant filed an EEO c omplaint alleging that the Agency
discriminated against her and subjected her to a hostile work environment on the bases of race
(African American), sex (female), and in reprisal for prior protected EEO activity when:
1. In April 2019, the EEO Director stated to the Deputy Assistant Chief of Staff (S1 )
that he did not care if Complainant filed an EEO complaint because his office
would process it; and
2. From October 2017 to July 14, 2019, Complainant was required to work outside her position descr iption, specifically to perform the GS -14 Disability Program
Manager duties, to process reasonable accommodation requests, provide EEO
support services to Command entities outside her service population, process more than 10 percent of acceptance/dismissal complaints, and review an
Administrative Instruction Manual .
Complainant identified multiple Agency officials as responsible for the alleged discrimination :
(1) the Deputy to the Assistant Chief of Staff (Caucasian, female) (S1); 2) the Deputy Director,
Equal Opportunity and Diversity Management (African American, male) (Deputy Director ); 3)
the Director, Equal Opportunity and Diversity Management (Caucasian, male) (Director); 4) the
Assistant Chief of Staff (Caucasian, male) (S2) ; and 5) the Supervisory Human Resources
Specialist (Caucasian, female) (SHRS ).
2 The Agency dismissed several additional allegations pursuant to 29 C.F.R. § 1614.107(a)( 1) for
failure to state a claim and pursuant to 29 C.F.R. § 1614.107(a)(2) for untimely EEO counselor contact. The Commission can find no basis to disturb the Agency’ s dismissal; however, these
claims will be considered as background evidence in support of Complainant’s hostile work environment claim.
Claim 1 – EEO Director’s Comment
S1 served as Complainant’s first- level supervisor (S1). S1 acknowledged that , in April 2019,
Complainant had informed her that she believed she was being assigned duties outside of her
Position Description and intended to file a complaint with the Office of Special Counsel. S1
stated she was unaware Complainant was alleging a host ile work environment regarding the
claims at issue. Report of Investigation (ROI), pp. 550- 553, 564.
On April 18, 2019, S1 stated she informed the EEO Director and the Deputy Director via email
of Complainant’s conversation in which Complainant expressed concerns to S1 over the unfair
assignment of duties outside of her grade level and dissatisfaction with the EEO Program.
Complainant stated that S1 told her that she informed the Director, and sh e asked the Director for
an official response regarding Complainant’s assigned duties to avoid Complainant filing an
EEO complaint. Complainant asserted that S1 told her that the Director said he did not care if she
filed an EEO complaint because the complaint would be processed by hi s office.
The Director confirmed that he and S1 had a discussion regarding Complainant’s concerns and
that S1 relayed that Complainant may be filing a complaint . ROI, pp. 593- 594. The Director
acknowledged that he was aware of Complainant’s EEO activity, of which he learned in April
2019. The Director affirm ed he made the comment at issue, but he asserted the context of his
statement was misconstrued. He explained that he made the comment to S1 that “[Complainant ]
can file a complaint and we would process it just as anyone else. She had that right.” ROI at 594.
He also noted that the complaint would have been directed to another office for processing since
the complaint would be against him and his office. ROI at 593- 594. The Director stressed he did
not make any decisions or take any actions against Complainant. ROI at 604.
Claim 3 – Required to Work Outside her Position Description
Complainant averred that she was being paid a GS -13 salary, but she was asked to perform GS -
14 duties. Complainant claimed that, from October 2017 to May 2019, the Director required her
to work outside of her position description by performing duties as the GS -14 Disability Program
Manager .
The Director explained that reasonable accommodation requests were not outside of
Complainant’s duties, but acknowledged the duties were not specified in her PD. He disagreed
that the duties were GS -14 duties. ROI at 595. The Director stated that neither he nor the
Deputy Director tasked her assignments. ROI at 608. S1 averred that she did not assign
Complainant work outside of her PD. After Complainant raised concerns that she was being tasked with duties outside her position description, the record shows that S1 emailed the Director and his chain of command , on April
26, 2019, informing them that Complainant should no longer be performing the disputed duties ,
pending clarification from the Human Resources Specialist regarding Complainant’s PD.
S1 then emailed the Human Resources Specialist to request a revie w of Complainant’s PD. ROI
at 137, 154 -155. In June 2019, Complainant requested a phone meeting with the Civilian Human
Resources Center to discuss her PD. Complainant requested a classification review of the PD as
she was concerned the grade of the PD was incorrectly classified. She was told that the duties in
PD were correct . ROI at 625.
The Assistant Chief of Staff (S2), who was S1’s supervisor, affirmed that Complainant was well
regarded, and they took her concerns very seriously. ROI at 616, 618. S2 averred that
Complainant’s concerns were always addressed in a prompt and timely manner. He stated
Complainant “ had thanked [ S1] and him several times in addressing the EO culture.” He added
“she worked hard and deserved ou r support and we gave it to her.” He did not believe the
Agency had taken any adverse actions against Complainant.
At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investi gation and notice of her right to request a hearing before an EEOC
Administrative Judge (AJ). Complainant timely requested a hearing ; however, she subsequently
withdrew her request. Consequently, the Agency issued a final decision pursuant to 29 C.F.R.
§ 1614.110(b). In the decision, the A gency determined that management articulated legitimate,
nondiscriminatory reasons for its actions. Regarding claim (2), Agency officials denied that Complainant was required to perform duties outside of her PD. More specifically, while reasonable accommodati on requests were considered under the purview of “other duties as
assigned,” Complainant only managed part of the process and routed the appropriate GS -14
specific duties to the GS -14 staff.
As to Complainant’s per se reprisal claim alleged in claim (2), the Director affirmed he made the
comment at issue, but asserted the context of his statement was misconstrued. He explained that he made the comment to S1 that Complainant could file a complaint and had the right to do so, and the complaint would be proc essed just as it would for anyone else. He noted that since the
complaint was against him/his office, the complaint would have been directed to another office for processing. The Agency noted that the comment was not made directly to Complainant and
did not dissuade Complainant from participating in the EEO process. Moreover, S1 described
the Director’s communication style as "terse, abrupt, and defensive." Thus, while the response may have been unprofessional or discourteous, Complainant did not establ ish that it had a
chilling effect or otherwise dissuaded her from pursuing an EEO complaint. The Agency concluded that Complainant failed to show that management’s reasons for its actions were pretextual. Further, the Agency determined that the alleged incidents were insufficiently severe or pervasive to establish a hostile work environment. As a result, the Agency found that Complainant was not subjected to discrimination, reprisal, or a hostile work environment as alleged.
This appeal followed.
CONTENTIONS ON APPEAL
On appeal, Complainant maintains the Agency failed to process her complaint impartially .
Complainant asserts that her complaint is a “conflict of interest complaint because Complainant
is an EEO Practitioner and named the EEO Head Agency Officials and staff in the complaint.”
Complainant argues that the Agency’s investigation was incomplete and is missing relevant
information. Accordingly, Complainant requests that the Commission reverse the final decision.
In response, the Agency contends there was no bias in the processing of Complainant’s
complaint because the individual whom Complainant named as responsible for claim (1) (the
Director) had retired from federal service and had no influence over the final agen cy decision in
this matter. In addition, t he Agency stated it contracted to a private firm to draft the final agency
Legal Analysis:
the Commission
AFFIRMS the Agency’s final decision.
ISSUES PRESENTED
Whether the Agency properly found that Complainant was not subjected to discrimination and a hostile work environment on the bases of race (African American), sex (female), and in reprisal
for prior protected EEO activity.
BACKGROUND
At the time of even ts giving rise to this complaint, Complainant worked as a n Equal
Employment Opportunity Manager, GS-0260- 13, in the Agency’s EEO Office at Walter Reed
National Military Medical Center in Bethesda, Maryland.
On October 1, 2019, Complainant filed an EEO c omplaint alleging that the Agency
discriminated against her and subjected her to a hostile work environment on the bases of race
(African American), sex (female), and in reprisal for prior protected EEO activity when:
1. In April 2019, the EEO Director stated to the Deputy Assistant Chief of Staff (S1 )
that he did not care if Complainant filed an EEO complaint because his office
would process it; and
2. From October 2017 to July 14, 2019, Complainant was required to work outside her position descr iption, specifically to perform the GS -14 Disability Program
Manager duties, to process reasonable accommodation requests, provide EEO
support services to Command entities outside her service population, process more than 10 percent of acceptance/dismissal complaints, and review an
Administrative Instruction Manual .
Complainant identified multiple Agency officials as responsible for the alleged discrimination :
(1) the Deputy to the Assistant Chief of Staff (Caucasian, female) (S1); 2) the Deputy Director,
Equal Opportunity and Diversity Management (African American, male) (Deputy Director ); 3)
the Director, Equal Opportunity and Diversity Management (Caucasian, male) (Director); 4) the
Assistant Chief of Staff (Caucasian, male) (S2) ; and 5) the Supervisory Human Resources
Specialist (Caucasian, female) (SHRS ).
2 The Agency dismissed several additional allegations pursuant to 29 C.F.R. § 1614.107(a)( 1) for
failure to state a claim and pursuant to 29 C.F.R. § 1614.107(a)(2) for untimely EEO counselor contact. The Commission can find no basis to disturb the Agency’ s dismissal; however, these
claims will be considered as background evidence in support of Complainant’s hostile work environment claim.
Claim 1 – EEO Director’s Comment
S1 served as Complainant’s first- level supervisor (S1). S1 acknowledged that , in April 2019,
Complainant had informed her that she believed she was being assigned duties outside of her
Position Description and intended to file a complaint with the Office of Special Counsel. S1
stated she was unaware Complainant was alleging a host ile work environment regarding the
claims at issue. Report of Investigation (ROI), pp. 550- 553, 564.
On April 18, 2019, S1 stated she informed the EEO Director and the Deputy Director via email
of Complainant’s conversation in which Complainant expressed concerns to S1 over the unfair
assignment of duties outside of her grade level and dissatisfaction with the EEO Program.
Complainant stated that S1 told her that she informed the Director, and sh e asked the Director for
an official response regarding Complainant’s assigned duties to avoid Complainant filing an
EEO complaint. Complainant asserted that S1 told her that the Director said he did not care if she
filed an EEO complaint because the complaint would be processed by hi s office.
The Director confirmed that he and S1 had a discussion regarding Complainant’s concerns and
that S1 relayed that Complainant may be filing a complaint . ROI, pp. 593- 594. The Director
acknowledged that he was aware of Complainant’s EEO activity, of which he learned in April
2019. The Director affirm ed he made the comment at issue, but he asserted the context of his
statement was misconstrued. He explained that he made the comment to S1 that “[Complainant ]
can file a complaint and we would process it just as anyone else. She had that right.” ROI at 594.
He also noted that the complaint would have been directed to another office for processing since
the complaint would be against him and his office. ROI at 593- 594. The Director stressed he did
not make any decisions or take any actions against Complainant. ROI at 604.
Claim 3 – Required to Work Outside her Position Description
Complainant averred that she was being paid a GS -13 salary, but she was asked to perform GS -
14 duties. Complainant claimed that, from October 2017 to May 2019, the Director required her
to work outside of her position description by performing duties as the GS -14 Disability Program
Manager .
The Director explained that reasonable accommodation requests were not outside of
Complainant’s duties, but acknowledged the duties were not specified in her PD. He disagreed
that the duties were GS -14 duties. ROI at 595. The Director stated that neither he nor the
Deputy Director tasked her assignments. ROI at 608. S1 averred that she did not assign
Complainant work outside of her PD. After Complainant raised concerns that she was being tasked with duties outside her position description, the record shows that S1 emailed the Director and his chain of command , on April
26, 2019, informing them that Complainant should no longer be performing the disputed duties ,
pending clarification from the Human Resources Specialist regarding Complainant’s PD.
S1 then emailed the Human Resources Specialist to request a revie w of Complainant’s PD. ROI
at 137, 154 -155. In June 2019, Complainant requested a phone meeting with the Civilian Human
Resources Center to discuss her PD. Complainant requested a classification review of the PD as
she was concerned the grade of the PD was incorrectly classified. She was told that the duties in
PD were correct . ROI at 625.
The Assistant Chief of Staff (S2), who was S1’s supervisor, affirmed that Complainant was well
regarded, and they took her concerns very seriously. ROI at 616, 618. S2 averred that
Complainant’s concerns were always addressed in a prompt and timely manner. He stated
Complainant “ had thanked [ S1] and him several times in addressing the EO culture.” He added
“she worked hard and deserved ou r support and we gave it to her.” He did not believe the
Agency had taken any adverse actions against Complainant.
At the | Chere S.,1
Complainant,
v.
Lloyd J. Austin III,
Secretary
Department of Defense
(Defense Health Agency),
Agency.
Appeal No. 2022004791
Hearing No. 520-2020-00898X
Agency No. 2019- CONF -071
DECISION
On August 31, 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 August 2, 2022 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
AFFIRMS the Agency’s final decision.
ISSUES PRESENTED
Whether the Agency properly found that Complainant was not subjected to discrimination and a hostile work environment on the bases of race (African American), sex (female), and in reprisal
for prior protected EEO activity.
BACKGROUND
At the time of even ts giving rise to this complaint, Complainant worked as a n Equal
Employment Opportunity Manager, GS-0260- 13, in the Agency’s EEO Office at Walter Reed
National Military Medical Center in Bethesda, Maryland.
On October 1, 2019, Complainant filed an EEO c omplaint alleging that the Agency
discriminated against her and subjected her to a hostile work environment on the bases of race
(African American), sex (female), and in reprisal for prior protected EEO activity when:
1. In April 2019, the EEO Director stated to the Deputy Assistant Chief of Staff (S1 )
that he did not care if Complainant filed an EEO complaint because his office
would process it; and
2. From October 2017 to July 14, 2019, Complainant was required to work outside her position descr iption, specifically to perform the GS -14 Disability Program
Manager duties, to process reasonable accommodation requests, provide EEO
support services to Command entities outside her service population, process more than 10 percent of acceptance/dismissal complaints, and review an
Administrative Instruction Manual .
Complainant identified multiple Agency officials as responsible for the alleged discrimination :
(1) the Deputy to the Assistant Chief of Staff (Caucasian, female) (S1); 2) the Deputy Director,
Equal Opportunity and Diversity Management (African American, male) (Deputy Director ); 3)
the Director, Equal Opportunity and Diversity Management (Caucasian, male) (Director); 4) the
Assistant Chief of Staff (Caucasian, male) (S2) ; and 5) the Supervisory Human Resources
Specialist (Caucasian, female) (SHRS ).
2 The Agency dismissed several additional allegations pursuant to 29 C.F.R. § 1614.107(a)( 1) for
failure to state a claim and pursuant to 29 C.F.R. § 1614.107(a)(2) for untimely EEO counselor contact. The Commission can find no basis to disturb the Agency’ s dismissal; however, these
claims will be considered as background evidence in support of Complainant’s hostile work environment claim.
Claim 1 – EEO Director’s Comment
S1 served as Complainant’s first- level supervisor (S1). S1 acknowledged that , in April 2019,
Complainant had informed her that she believed she was being assigned duties outside of her
Position Description and intended to file a complaint with the Office of Special Counsel. S1
stated she was unaware Complainant was alleging a host ile work environment regarding the
claims at issue. Report of Investigation (ROI), pp. 550- 553, 564.
On April 18, 2019, S1 stated she informed the EEO Director and the Deputy Director via email
of Complainant’s conversation in which Complainant expressed concerns to S1 over the unfair
assignment of duties outside of her grade level and dissatisfaction with the EEO Program.
Complainant stated that S1 told her that she informed the Director, and sh e asked the Director for
an official response regarding Complainant’s assigned duties to avoid Complainant filing an
EEO complaint. Complainant asserted that S1 told her that the Director said he did not care if she
filed an EEO complaint because the complaint would be processed by hi s office.
The Director confirmed that he and S1 had a discussion regarding Complainant’s concerns and
that S1 relayed that Complainant may be filing a complaint . ROI, pp. 593- 594. The Director
acknowledged that he was aware of Complainant’s EEO activity, of which he learned in April
2019. The Director affirm ed he made the comment at issue, but he asserted the context of his
statement was misconstrued. He explained that he made the comment to S1 that “[Complainant ]
can file a complaint and we would process it just as anyone else. She had that right.” ROI at 594.
He also noted that the complaint would have been directed to another office for processing since
the complaint would be against him and his office. ROI at 593- 594. The Director stressed he did
not make any decisions or take any actions against Complainant. ROI at 604.
Claim 3 – Required to Work Outside her Position Description
Complainant averred that she was being paid a GS -13 salary, but she was asked to perform GS -
14 duties. Complainant claimed that, from October 2017 to May 2019, the Director required her
to work outside of her position description by performing duties as the GS -14 Disability Program
Manager .
The Director explained that reasonable accommodation requests were not outside of
Complainant’s duties, but acknowledged the duties were not specified in her PD. He disagreed
that the duties were GS -14 duties. ROI at 595. The Director stated that neither he nor the
Deputy Director tasked her assignments. ROI at 608. S1 averred that she did not assign
Complainant work outside of her PD. After Complainant raised concerns that she was being tasked with duties outside her position description, the record shows that S1 emailed the Director and his chain of command , on April
26, 2019, informing them that Complainant should no longer be performing the disputed duties ,
pending clarification from the Human Resources Specialist regarding Complainant’s PD.
S1 then emailed the Human Resources Specialist to request a revie w of Complainant’s PD. ROI
at 137, 154 -155. In June 2019, Complainant requested a phone meeting with the Civilian Human
Resources Center to discuss her PD. Complainant requested a classification review of the PD as
she was concerned the grade of the PD was incorrectly classified. She was told that the duties in
PD were correct . ROI at 625.
The Assistant Chief of Staff (S2), who was S1’s supervisor, affirmed that Complainant was well
regarded, and they took her concerns very seriously. ROI at 616, 618. S2 averred that
Complainant’s concerns were always addressed in a prompt and timely manner. He stated
Complainant “ had thanked [ S1] and him several times in addressing the EO culture.” He added
“she worked hard and deserved ou r support and we gave it to her.” He did not believe the
Agency had taken any adverse actions against Complainant.
At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investi gation and notice of her right to request a hearing before an EEOC
Administrative Judge (AJ). Complainant timely requested a hearing ; however, she subsequently
withdrew her request. Consequently, the Agency issued a final decision pursuant to 29 C.F.R.
§ 1614.110(b). In the decision, the A gency determined that management articulated legitimate,
nondiscriminatory reasons for its actions. Regarding claim (2), Agency officials denied that Complainant was required to perform duties outside of her PD. More specifically, while reasonable accommodati on requests were considered under the purview of “other duties as
assigned,” Complainant only managed part of the process and routed the appropriate GS -14
specific duties to the GS -14 staff.
As to Complainant’s per se reprisal claim alleged in claim (2), the Director affirmed he made the
comment at issue, but asserted the context of his statement was misconstrued. He explained that he made the comment to S1 that Complainant could file a complaint and had the right to do so, and the complaint would be proc essed just as it would for anyone else. He noted that since the
complaint was against him/his office, the complaint would have been directed to another office for processing. The Agency noted that the comment was not made directly to Complainant and
did not dissuade Complainant from participating in the EEO process. Moreover, S1 described
the Director’s communication style as "terse, abrupt, and defensive." Thus, while the response may have been unprofessional or discourteous, Complainant did not establ ish that it had a
chilling effect or otherwise dissuaded her from pursuing an EEO complaint. The Agency concluded that Complainant failed to show that management’s reasons for its actions were pretextual. Further, the Agency determined that the alleged incidents were insufficiently severe or pervasive to establish a hostile work environment. As a result, the Agency found that Complainant was not subjected to discrimination, reprisal, or a hostile work environment as alleged.
This appeal followed.
CONTENTIONS ON APPEAL
On appeal, Complainant maintains the Agency failed to process her complaint impartially .
Complainant asserts that her complaint is a “conflict of interest complaint because Complainant
is an EEO Practitioner and named the EEO Head Agency Officials and staff in the complaint.”
Complainant argues that the Agency’s investigation was incomplete and is missing relevant
information. Accordingly, Complainant requests that the Commission reverse the final decision.
In response, the Agency contends there was no bias in the processing of Complainant’s
complaint because the individual whom Complainant named as responsible for claim (1) (the
Director) had retired from federal service and had no influence over the final agen cy decision in
this matter. In addition, t he Agency stated it contracted to a private firm to draft the final agency
decision. Next, t he Agency noted that Complainant does not expressly take issue with any of the
Agency’s substantive findings and asks that the decision be affirmed for that reason .
STANDARD OF REVIEW
As this is an appeal from a decision issued without a hearing, pursuant to 29 C.F.R. § 1614.110(b), the Agency's decision is subject to de novo review by the Commission. 29 C.F.R.
§ 1614.405(a). See Equal Employment Opportunity Management Directive for 29 C.F.R. Part
1614, at Chapter 9, § VI.A. (Aug. 5, 2015) (explaining th at 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 a ny 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
Adequacy of the Investigation
On appeal, Complainant argues that the investigation was inadequate and biased. Investigations of discrimination complaints are governed by 29 C.F.R. § 1614.108 and the instructions contained in the Commission's EEO MD -110. See EEO MD -110, Chap. 6 (“Development of
Impartial and Appropriate Factual Records”). An adequate agency investigation is one that is developed impartially and contains an appropriate factual record. 29 C.F.R. § 1614.108(b). “An appropriate factual record is one that allows a reasonable fact finder to draw conclusions as to
whether discrimination occurred.” 29 C.F.R. § 1614.108(b); EEO MD -110, Chap. 6, § § I, IV.B.,
IV.C. An investigator must be unbiased, objective and thorough. Id. at § V.C. The investigator must obtain all relevant evid ence from all sources regardless of how it may affect the outcome.
Id. at § V.D. Here, the Commission finds that there is no evidence of bias by the investigator and
the Commission finds that the record was adequately developed such that we can draw conclusions as to whether discrimination occurred.
We note that Complainant withdrew her request for a hearing, a process which would have
afforded her the opportunity to conduct discovery and cure alleged defects in the record.
Conflict of Interest
In addition, Complainant contends that Agency’s final agency decision should be vacated and remanded because management officials identified in her complaint had “access to and the responsibility to process the final agency decision” creating a conflict of interest. The Agency
noted that the EEO Director identified in Complainant’s complaint had retired prior to the issuance of the decision and had no influence over the matter. Further, the Agency contracted with a private firm to render the final agency decision in this case.
In EEO Management Directive for 29 C.F.R. Part 1614 (EEO MD -110), Chapter 1, IV,
“Avoiding Conflicts of Interest” the Commission has recognized that in the federal sector process Agency heads must manage the dual obligations of carrying out fair and impartial
investigations of complaints that result in final agency decisions as to whether discrimination has occurred and defending the agency against claims of employment discrimination. The Commission maintains tha t a clear separation between the agency's EEO complaint program and
the agency's defensive function is thus the essential underpinning of a fair and impartial investigation, enhancing the credibility of the EEO office and the integrity of the EEO complaint s process. Id. at § IV.C. In Junior M. v. Central Intelligence Agency, EEOC Request
No. 2019003175 (Sept. 26, 2019), the Commission stated that an effective EEO program must be impartial, both in appearance and in existence and reflect EEOC's endeavor to keep the advocacy
function out of federal sector EEO offices due to their unique obligations and responsibilities.
Here, we emphasize that Complainant’s complaint was investigated outside of the Agency under its conflict- of-interest rules by the Washington Headquarters Service. There is no evidence in
the record that the EEO Director who was identified in the complaint was involved in the investigat ion or final agency decision process. Furthermore, the record demonstrates that the
Agency contrac ted an outside party to draft the final agency decision. To the extent
Complainant argues that the decision was written by someone who is named in her complaint, we do not find that to be true as the individual Complainant identifies as the writer of the
decision is not mentioned in the record as either a responsible management official or a witness.
Under the specific circumstances of this case, we do not find that it is necessary to vacate the Agency's decision. The investigative process and the issua nce of the final agency decision were
properly handled outside of the Agency, and we find that there is sufficient evidence in the record on which to base our decision addressing Complainant’s claims. We further note that because this is an appeal of an A gency decision without a hearing, we will review it de novo. We
will therefore proceed to address Complainant's claims on the merits.
Per Se Reprisal
The Commission has held that the actions of a supervisor may be considered “per se” reprisal when the supervisor intimidates an employee and interferes with the employee's EEO activity in any manner. See Israel F. v. U.S. Postal Serv., EEOC Appeal No. 0120181863 (Sept. 26, 2019)
(citing Binseel v. Dep't of the Army , EEOC Request No. 05970584 (Oct. 8, 1998). Comments
that, on their face, discourage an employee from participating in the EEO process violate the letter and spirit of the EEOC regulations and evidence a per se violation of the law. Id . Central
to a finding of per se reprisal is that the conduct is reasonably likely to have a chilling effect on the complainant or a reasonable employee from engaging in, or pursuing, protected activity. Id .
(citing Christeen H. v. U.S. Postal Serv., EEO C Appeal No. 0120162478 (June 14, 2018)).
Here, Complainant alleged that the EEO Director stated to S1, that he did not care if
Complainant filed an EEO complaint because his office would process it. Complainant was not present when the comment was made nor is there any evidence demonstrating that the comment
was intended to dissuade Complainant from filing an EEO complaint. The EEO Director explained that he was simply indicating that if Complainant exercised her right to file an EEO complaint, the offi ce would process it as it would a complaint filed by anyone else. While the
record demonstrates that the EEO Director may have had a brusque style of communication,
there is no evidence showing that this was an attempt to intimidate Complainant or otherw ise
interfere with Complainant’s participation in the EEO process. As such, we find that
Complainant has not established that the Agency's conduct was per se reprisal.
Disparate Treatment – Claim (2)
To prevail in a disparate treatment claim, Complaina nt must satisfy the three -part evidentiary
scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792
(1973). Complainant must initially establish a prima facie case by demonstrating that she was subjected to an adverse employm ent action under circumstances that would support an inference
of discrimination. Furnco Constr. Corp. 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. Tex. Dep’t of Cmty. Affairs v. Burdine , 450 U.S. 248, 253 (1981). To
ultimately prevail, Complainant must prove, by a preponderance of t he evidence, that the
Agency's explanation is pretextual. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133,
120 S. Ct. 2097 (2000); St. Mary’s Honor Ctr. v. Hicks , 509 U.S. 502, 519 (1993).
To establish a prima facie case of discrimination, a comp lainant must show that: (1) she is a
member of a protected group; (2) she suffered an adverse employment action; and (3) the circumstances give rise to an inference of discrimination. We note that, although a complainant bears the burden of establishing a “prima facie” case, Tex. Dep't of Cmty. Affairs v. Burdine ,
450 U.S. 248, 252- 53 (1981), the requirements are “minimal,” St. Mary's Honor Ctr. v. Hicks ,
509 U.S. 502, 506 (1993), and complainant's burden is “not onerous.” Burdine , 450 U.S. at 253.
Complainant may establish a prima facie case of reprisal by showing that she (1) engaged in a
protected activity; (2) the Agency was aware of her protected ac tivity; (3) Complainant was
subjected to adverse treatment by the Agency; and (4) a nexus exists between the protected activity and the adverse action. Whitmire v. Dep't of the Air Force , EEOC Appeal No.
01A00340 (Sept. 25, 2010). Regarding claim ( 2), Co mplainant failed to establish a prima facie case of discrimination or
reprisal. Complainant failed to identify any individuals outside of her protected classes who were treated more favorably. Management identified an African American female co -worker
who performed the same GS -13 duties as Complainant. Additionally, Complainant claimed that
she was ordered to perform duties outside of her PD from October 2017 to May 2019; however, Complainant only informed management of her intent to file an EEO complain t in April 2019.
Furthermore, Complainant has not shown a nexus between the alleged conduct and her protected EEO activity. Complainant has not presented any evidence otherwise raising and inference of discrimination or reprisal.
Even assuming Complaina nt had established a prima facie case of discrimination and reprisal,
the Agency has articulated legitimate, nondiscriminatory reasons for its actions. Agency officials explained that the disputed reasonable accommodation duties were Complainant’s respons ibility as EEO manager and fell under the purview of "other duties as assigned" in her
PD. Complainant received the requests and managed part of the process but routed the GS -14
duties to the appropriate GS -14 employees. Complainant was not responsible for such duties as
drafting administrative instructions or other policies and procedures .
Complainant now bears the burden of establishing that the Agency's stated reasons are merely a pretext for discrimination or reprisal. Shapiro v. Soc. Sec. Admin., EEO C Request No. 05960403
(Dec. 9, 1996). Complainant can do this directly by showing that the Agency's proffered explanation is unworthy of credence. Tx. Dep't of Cmty. Affairs v. Burdine , 450 U.S. at 256.
The Commission finds no persuasive evidence that C omplainant's protected classes were a factor
in any of the Agency's actions. Aside from Complainant's conclusory allegations and speculations, Complainant has not persuaded us that the Agency’s admitted error was a pretext to mask illegal discriminatory or retaliatory animus. Our inquiry is not whether the Agency made a
mistake or exercised poor judgment. Pretext does not require that an agency's actions be impeccable. Rather, the focus is on whether the Agency acted on a prohibited consideration when it engaged in the challenged conduct. Bernardina N. v. Dep't of Def., EEOC Appeal No.
2019002956 (Sept. 22, 2020) (the complainant did not establish pretext where the record reflected that agency officials erred in interpreting agency policies).
As Complainant withdrew her request for a hearing, the Commission does not have the benefit of
an Administrative Judge's final credibility determinations after a hearing. Therefore, the Commission can only evaluate the facts based on the weight of the evidence presented. The Commission finds insufficient persuasive evidence that Complainant's protected classes were a factor in any of the Agency's actions.
At all times, the ultimate burden remains with Complainant to demonstrate by a preponderance
of the evidence that the Agency's reasons were not the real reasons and that the Agency acted based on discriminatory or retaliatory animus. Complainant failed to carry this burden. Finally, to the extent that Complainant alleges that she was subjected to a hosti le work
environment regarding the alleged incidents, we find that a finding of a discriminatory or retaliatory hostile work environment is precluded based on our finding that Complainant failed to establish that the Agency's actions were motivated by discr iminatory or retaliatory animus. See
Oakley v. U.S. Postal Serv., EEOC Appeal No. 01932923 (Sept. 21, 2000). As a result, the
Commission finds that Complainant has not established that she was subjected to discrimination or reprisal as alleged.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specificall y addressed herein, we AFFIRM the Agency’s f inal decision .
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 suppor t 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://publ icportal.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 fiv e 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 part y’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 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(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. Failure 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. 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:
_____________________________ Car lton M. Hadden’s signature
Carlton M. Hadden, Director
Office of Federal Operations
July 29, 2024
Date | [
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165 | https://www.eeoc.gov/sites/default/files/migrated_files/decisions/01a55180.txt | 01a55180.txt | TXT | text/plain | 7,054 | John S. Mayfield v. Department of Veterans Affairs 01A55180 November 30, 2005 . John S. Mayfield, Complainant, v. R. James Nicholson, Secretary, Department of Veterans Affairs, Agency. | November 30, 2005 | Appeal Number: 01A55180
Case Facts:
Legal Analysis:
Upon review, the Commission finds that the complainant's complaint
was properly dismissed pursuant to 29 C.F.R. § 1614.107(a)(2), for
untimely EEO Counselor contact. The complainant claimed that he was
subjected to discriminatory harassment by agency police based on his race
(African-American) when:
(1) around October 2003, he was grabbed and his head was smashed against
a brick wall five times,
(2) around October 2003, he was arrested and incarcerated for allegedly
slamming a door on a police officer,
(3) around October 2003, drugs were allegedly planted on his person, and
(4) around March 2004, his employee rights were not read or explained
to him when he was stopped in excess of five times for driving violations.
The complainant initiated contact with an EEO counselor on April 29, 2005.
An aggrieved person must seek EEO counseling within 45 days of the date
of the alleged discriminatory action, or in the case of a personnel
action, within 45 days of the effective date of the action. 29 C.F.R. §
1614.105(a)(1). The time limit to seek EEO counseling shall be extended
when an individual shows that he was not notified of the time limits
and was not otherwise aware of them, or for other sufficient reasons.
29 C.F.R. § 1614.105(a)(2).
While the complainant cited the March 2004 date in his complaint, he
told the EEO counselor that he was harassed when he was stopped by
agency police in December 2004 for a vehicle violation, and had been
stopped by agency police five times. The record contains an agency
police report showing that he was stopped by agency police as recently
as November 2004 for driving with a suspended licence.
The final agency decision (FAD) dismissed the complainant's complaint
on the grounds that he did not seek EEO counseling within the 45 day
time limit. The complainant does not contest this. Rather, he claimed
that he was not aware of the 45 day time limit to seek EEO counseling.
The FAD found that the complainant was aware of the 45 day time limit
because he took EEO training. In response to the complainant's appeal,
the agency submits an affidavit by an EEO Manager affirming that in
September 1998 the agency gave mandatory ORM/EEO Process training
which covered the 45 day time limit for contacting an EEO counselor.
Employees who were unable to attend the live training were required to
view a videotape of the live training. The EEO Manager affirmed that
while the complainant was unable to attend the live training, he executed
a sign-in sheet indicating that he viewed the videotape of the training,
and it covered the 45 day time limit. The agency copied the affidavit
to the complainant, and he does not contest it.
Final Decision:
Accordingly, we find that the complainant knew or should have known of the 45 day time limit. The complainant also stated that he delayed contacting an EEO counselor because he feared doing so would bring more unfair treatment of him by the agency police. This is insufficient reason to delay initiating contact with an EEO counselor. On appeal, the complainant has presented no persuasive arguments or evidence warranting an extension of the time limit for initiating EEO counselor contact. Accordingly, the FAD's dismissal of the complainant's complaint is affirmed. | John S. Mayfield v. Department of Veterans Affairs
01A55180
November 30, 2005
.
John S. Mayfield,
Complainant,
v.
R. James Nicholson,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 01A55180
Agency No. 200J-0556-2005102377
DECISION
Upon review, the Commission finds that the complainant's complaint
was properly dismissed pursuant to 29 C.F.R. § 1614.107(a)(2), for
untimely EEO Counselor contact. The complainant claimed that he was
subjected to discriminatory harassment by agency police based on his race
(African-American) when:
(1) around October 2003, he was grabbed and his head was smashed against
a brick wall five times,
(2) around October 2003, he was arrested and incarcerated for allegedly
slamming a door on a police officer,
(3) around October 2003, drugs were allegedly planted on his person, and
(4) around March 2004, his employee rights were not read or explained
to him when he was stopped in excess of five times for driving violations.
The complainant initiated contact with an EEO counselor on April 29, 2005.
An aggrieved person must seek EEO counseling within 45 days of the date
of the alleged discriminatory action, or in the case of a personnel
action, within 45 days of the effective date of the action. 29 C.F.R. §
1614.105(a)(1). The time limit to seek EEO counseling shall be extended
when an individual shows that he was not notified of the time limits
and was not otherwise aware of them, or for other sufficient reasons.
29 C.F.R. § 1614.105(a)(2).
While the complainant cited the March 2004 date in his complaint, he
told the EEO counselor that he was harassed when he was stopped by
agency police in December 2004 for a vehicle violation, and had been
stopped by agency police five times. The record contains an agency
police report showing that he was stopped by agency police as recently
as November 2004 for driving with a suspended licence.
The final agency decision (FAD) dismissed the complainant's complaint
on the grounds that he did not seek EEO counseling within the 45 day
time limit. The complainant does not contest this. Rather, he claimed
that he was not aware of the 45 day time limit to seek EEO counseling.
The FAD found that the complainant was aware of the 45 day time limit
because he took EEO training. In response to the complainant's appeal,
the agency submits an affidavit by an EEO Manager affirming that in
September 1998 the agency gave mandatory ORM/EEO Process training
which covered the 45 day time limit for contacting an EEO counselor.
Employees who were unable to attend the live training were required to
view a videotape of the live training. The EEO Manager affirmed that
while the complainant was unable to attend the live training, he executed
a sign-in sheet indicating that he viewed the videotape of the training,
and it covered the 45 day time limit. The agency copied the affidavit
to the complainant, and he does not contest it. Accordingly, we find
that the complainant knew or should have known of the 45 day time limit.
The complainant also stated that he delayed contacting an EEO counselor
because he feared doing so would bring more unfair treatment of him
by the agency police. This is insufficient reason to delay initiating
contact with an EEO counselor. On appeal, the complainant has presented
no persuasive arguments or evidence warranting an extension of the time
limit for initiating EEO counselor contact. Accordingly, the FAD's
dismissal of the complainant's complaint is affirmed.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
The Commission may, in its discretion, reconsider the decision in this
case if the complainant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. The appellate decision involved a clearly erroneous interpretation
of material fact or law; or
2. The appellate decision will have a substantial impact on the policies,
practices, or operations of the agency.
Requests to reconsider, with supporting statement or brief, must be filed
with the Office of Federal Operations (OFO) within thirty (30) calendar
days of receipt of this decision or within twenty (20) calendar days of
receipt of another party's timely request for reconsideration. See 29
C.F.R. § 1614.405; Equal Employment Opportunity Management Directive for
29 C.F.R. Part 1614 (EEO MD-110), 9-18 (November 9, 1999). All requests
and arguments must be submitted to the Director, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. In the absence of a legible postmark, the
request to reconsider shall be deemed timely filed if it is received by
mail within five days of the expiration of the applicable filing period.
See 29 C.F.R. § 1614.604. The request or opposition must also include
proof of service on the other party.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely, unless extenuating circumstances
prevented the timely filing of the request. Any supporting documentation
must be submitted with your request for reconsideration. The Commission
will consider requests for reconsideration filed after the deadline only
in very limited circumstances. See 29 C.F.R. § 1614.604(c).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S0900)
You have the right to file a civil action in an appropriate United States
District Court within ninety (90) calendar days from the date that you
receive this decision. If you file a civil action, you must name as
the defendant in the complaint the person who is the official agency head
or department head, identifying that person by his or her full name and
official title. Failure to do so may result in the dismissal of your
case in court. "Agency" or "department" means the national organization,
and not the local office, facility or department in which you work. If you
file a request to reconsider and also file a civil action, filing a civil
action will terminate the administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z1199)
If you decide to file a civil action, and if you do not have or cannot
afford the services of an attorney, you may request that the Court appoint
an attorney to represent you and that the Court permit you to file the
action without payment of fees, costs, or other security. See Title VII
of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq.;
the Rehabilitation Act of 1973, as amended, 29 U.S.C. §§ 791, 794(c).
The grant or denial of the request is within the sole discretion of the
Court. Filing a request for an attorney does not extend your time in
which to file a civil action. Both the request and the civil action
must be filed within the time limits as stated in the paragraph above
("Right to File A Civil Action").
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
November 30, 2005
__________________
Date
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166 | https://www.eeoc.gov/sites/default/files/migrated_files/decisions/01a53407.txt | 01a53407.txt | TXT | text/plain | 6,985 | Demos A. Kuchulis v. Social Security Administration 01A53407 June 7, 2006 . Demos A. Kuchulis, Complainant, v. Jo Anne B. Barnhart, Commissioner, Social Security Administration, Agency. | June 7, 2006 | Appeal Number: 01A53407
Case Facts:
On October 3, 2002, complainant filed a formal EEO complaint in which he
claimed that the agency subjected him to harassment and a hostile work
environment in reprisal for his previous EEO activity when on August 9,
2002, he was reminded by the Hearing Office Director that he had been
previously told to request official duty time prior to engaging in any
EEO activity. Complainant claimed that the Hearing Office Director
advised him that the policy was to be considered a direct order and,
should it not be adhered to, disciplinary action might result.
The agency investigated the complaint and informed complainant of
his right to request a hearing before an EEOC Administrative Judge.
Complainant did not request a hearing and the agency issued a final
action dated March 7, 2005, finding that no discrimination occurred.
The agency noted that in a memorandum dated January 17, 2001, to the
staff, the agency stated that reasonable time will be allowed for EEO
activities and employees must request official time by use of the SF-71
form. The agency stated that the SF-71 form must contain the EEO case
number assigned by the EEO Counselor, whether the EEO activity is at the
informal or formal stage, what the complainant will be working on, and the
number of hours complainant will be requesting to work on EEO activities.
The agency determined that it articulated legitimate, nondiscriminatory
reasons for the alleged actions. According to the agency, on or about
August 8, 2002, the Hearing Office Director was informed by the EEO
Office that complainant had initiated an EEO complaint. The agency
noted that the Hearing Office Director stated that she was concerned
about complainant's participation in EEO activity without prior approval
during official duty time. The Hearing Office Director stated that she
was under the impression that conducting EEO activity during break time
needed prior approval. The Hearing Office Director stated that when
she was informed that conducting EEO activity during break time did not
require prior approval, she sent complainant an e-mail on September 19,
2002, stating that he did not need prior approval to use his breaks or
lunch periods for EEO activity. The agency determined that management's
articulated, nondiscriminatory reasons far outweighed the evidence
complainant presented that discrimination did occur.
Legal Analysis:
Upon review of the record, we observe that complainant does not claim
that he was denied official time. Rather, complainant claims that he
was subjected to reprisal harassment by virtue of the reminder that
he request official duty time prior to engaging in any EEO activity.
We find that complainant has not shown that he was actually denied
official time. Also, we find that there is no indication that any
agency policy violates our official time regulations as set forth in EEOC
Regulation 29 C.F.R. §1614.605. With regard to the merits of his claim,
complainant has not shown that his claim rises to the level of a hostile
work environment and he has failed to rebut the agency's legitimate,
nondiscriminatory reasons. Therefore, we find that no discrimination
occurred.
The Commission AFFIRMS the agency's final order. | Demos A. Kuchulis v. Social Security Administration
01A53407
June 7, 2006
.
Demos A. Kuchulis,
Complainant,
v.
Jo Anne B. Barnhart,
Commissioner,
Social Security Administration,
Agency.
Appeal No. 01A53407
Agency No. 03-0041-SSA
DECISION
On October 3, 2002, complainant filed a formal EEO complaint in which he
claimed that the agency subjected him to harassment and a hostile work
environment in reprisal for his previous EEO activity when on August 9,
2002, he was reminded by the Hearing Office Director that he had been
previously told to request official duty time prior to engaging in any
EEO activity. Complainant claimed that the Hearing Office Director
advised him that the policy was to be considered a direct order and,
should it not be adhered to, disciplinary action might result.
The agency investigated the complaint and informed complainant of
his right to request a hearing before an EEOC Administrative Judge.
Complainant did not request a hearing and the agency issued a final
action dated March 7, 2005, finding that no discrimination occurred.
The agency noted that in a memorandum dated January 17, 2001, to the
staff, the agency stated that reasonable time will be allowed for EEO
activities and employees must request official time by use of the SF-71
form. The agency stated that the SF-71 form must contain the EEO case
number assigned by the EEO Counselor, whether the EEO activity is at the
informal or formal stage, what the complainant will be working on, and the
number of hours complainant will be requesting to work on EEO activities.
The agency determined that it articulated legitimate, nondiscriminatory
reasons for the alleged actions. According to the agency, on or about
August 8, 2002, the Hearing Office Director was informed by the EEO
Office that complainant had initiated an EEO complaint. The agency
noted that the Hearing Office Director stated that she was concerned
about complainant's participation in EEO activity without prior approval
during official duty time. The Hearing Office Director stated that she
was under the impression that conducting EEO activity during break time
needed prior approval. The Hearing Office Director stated that when
she was informed that conducting EEO activity during break time did not
require prior approval, she sent complainant an e-mail on September 19,
2002, stating that he did not need prior approval to use his breaks or
lunch periods for EEO activity. The agency determined that management's
articulated, nondiscriminatory reasons far outweighed the evidence
complainant presented that discrimination did occur.
Upon review of the record, we observe that complainant does not claim
that he was denied official time. Rather, complainant claims that he
was subjected to reprisal harassment by virtue of the reminder that
he request official duty time prior to engaging in any EEO activity.
We find that complainant has not shown that he was actually denied
official time. Also, we find that there is no indication that any
agency policy violates our official time regulations as set forth in EEOC
Regulation 29 C.F.R. §1614.605. With regard to the merits of his claim,
complainant has not shown that his claim rises to the level of a hostile
work environment and he has failed to rebut the agency's legitimate,
nondiscriminatory reasons. Therefore, we find that no discrimination
occurred.
The Commission AFFIRMS the agency's final order.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
The Commission may, in its discretion, reconsider the decision in this
case if the complainant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. The appellate decision involved a clearly erroneous interpretation
of material fact or law; or
2. The appellate decision will have a substantial impact on the policies,
practices, or operations of the agency.
Requests to reconsider, with supporting statement or brief, must be filed
with the Office of Federal Operations (OFO) within thirty (30) calendar
days of receipt of this decision or within twenty (20) calendar days of
receipt of another party's timely request for reconsideration. See 29
C.F.R. § 1614.405; Equal Employment Opportunity Management Directive for
29 C.F.R. Part 1614 (EEO MD-110), 9-18 (November 9, 1999). All requests
and arguments must be submitted to the Director, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. In the absence of a legible postmark, the
request to reconsider shall be deemed timely filed if it is received by
mail within five days of the expiration of the applicable filing period.
See 29 C.F.R. § 1614.604. The request or opposition must also include
proof of service on the other party.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely, unless extenuating circumstances
prevented the timely filing of the request. Any supporting documentation
must be submitted with your request for reconsideration. The Commission
will consider requests for reconsideration filed after the deadline only
in very limited circumstances. See 29 C.F.R. § 1614.604(c).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S0900)
You have the right to file a civil action in an appropriate United States
District Court within ninety (90) calendar days from the date that you
receive this decision. If you file a civil action, you must name as
the defendant in the complaint the person who is the official agency head
or department head, identifying that person by his or her full name and
official title. Failure to do so may result in the dismissal of your
case in court. "Agency" or "department" means the national organization,
and not the local office, facility or department in which you work. If you
file a request to reconsider and also file a civil action, filing a civil
action will terminate the administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z1199)
If you decide to file a civil action, and if you do not have or cannot
afford the services of an attorney, you may request that the Court appoint
an attorney to represent you and that the Court permit you to file the
action without payment of fees, costs, or other security. See Title VII
of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq.;
the Rehabilitation Act of 1973, as amended, 29 U.S.C. §§ 791, 794(c).
The grant or denial of the request is within the sole discretion of
the Court. Filing a request for an attorney does not extend your time
in which to file a civil action. Both the request and the civil action
must be filed within the time limits as stated in the paragraph above
("Right to File A Civil Action").
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
June 7, 2006
__________________
Date
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167 | https://www.eeoc.gov/sites/default/files/migrated_files/decisions/0520120485.txt | 0520120485.txt | TXT | text/plain | 6,137 | Phyllis L. Black, Complainant, v. Timothy F. Geithner, Secretary, Department of the Treasury (Internal Revenue Service), Agency. | May 10, 2012 | Appeal Number: 0120113435 | Phyllis L. Black,
Complainant,
v.
Timothy F. Geithner,
Secretary,
Department of the Treasury
(Internal Revenue Service),
Agency.
Request No. 0520120485
Appeal No. 0120113435
Agency No. IRS-11-0130-F
DENIAL
Complainant timely requested reconsideration of the decision in Phyllis L. Black v. Department of the Treasury, EEOC Appeal No. 0120113435 (May 10, 2012). 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).
On August 3, 2010, Complainant initiated EEO Counselor contact, and on February 14, 2011, filed a formal complaint in which she alleged that the Agency subjected her to reprisal because of her prior EEO activity when, on May 24, 2010, she received a lowered annual performance evaluation. The record reveals that, on March 2, 2011, Complainant received a letter from the Agency in which she was informed that she had the opportunity to show why the 45-day time limit for initiating EEO Counselor contact should be extended in this case. Complainant was given 15 days to respond to the Agency's letter.
In a letter dated March 14, 2011, Complainant generally asserted that she contacted an EEO Counselor in a timely fashion, and she would provide the name of the Counselor she initially contacted at her "earliest convenience." Complainant did not provide the name of the Counselor within 15 days of receiving the Agency's letter. In a final decision dated April 4, 2011, the Agency dismissed Complainant's complaint on the basis that Complainant initiated untimely EEO counselor contact. In our previous decision, the Commission affirmed the Agency's dismissal of Complainant's complaint.
In her request for reconsideration, Complainant maintains that when she attempted to file an EEO complaint in early June 2010, "it seemed that there was no EEO office or staff person at the Memphis Service Center." Complainant identifies the previous EEO Counselor as the person whom she initially contacted about her EEO claim. Complainant contends that she left a voicemail message for and sent an email message to the previous EEO Counselor on June 7, 2010, in which she stated that she wanted to file an EEO complaint. Complainant contends that the previous EEO Counselor informed her via email that she had become an EEO Specialist, and she was in training.
We note 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. We note that, when given the opportunity to explain why the time limit for initiating counseling should be waived, Complainant did not identify the EEO Counselor she purportedly initially contacted. Moreover, Complainant did not raise any arguments on appeal. Complainant cannot now revive her complaint by belatedly making new representations in her request for reconsideration. Therefore, as our previous decision found, Complainant's complaint was properly dismissed because it was initiated by untimely EEO Counselor contact.
Consequently, 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. 0120113435 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 21, 2012
Date
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168 | https://www.eeoc.gov/sites/default/files/migrated_files/decisions/0520110333.txt | 0520110333.txt | TXT | text/plain | 5,853 | Richard K. Lange, Jr., Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service, (Southwest Area), Agency. | February
17, 2011 | Appeal Number: 0120110204 | 
Richard K. Lange, Jr.,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service,
(Southwest Area),
Agency.
Request No. 0520110333
Appeal No. 0120110204
Agency No. 4G700010310
DENIAL
Complainant timely requested reconsideration of the decision in Richard
K. Lange, Jr. v. U.S. Postal Serv., EEOC Appeal No. 0120110204 (February
17, 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).
The previous decision found that the Agency properly dismissed the
complaint for failing to timely contact an EEO counselor, where
the alleged discriminatory incidents occurred from 2005 to 2007 and
Complainant contacted the EEO counselor on May 24, 2010. Specifically,
the previous decision found that Complainant had constructive knowledge
of the time limit to contact an EEO counselor, even if he did not have
actual knowledge.
In his request for reconsideration, Complainant argues that management
officials and union representatives deliberately withheld from him
information about the EEO process around the time of the incidents in
question, including the time limit for contacting an EEO counselor.
He also maintains that he did not have constructive knowledge of the
time limit in 2005 or 2006 because his facility had been affected by
Hurricane Katrina, and he doubts that an EEO poster would have been
posted at his facility during the recovery time period.
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.
It is the Commissionâs 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
EEOCâs regulations. Thompson v. Depât of the Army, EEOC Request
No. 05910474 (Sept. 12, 1991). An 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 an employee of his or her rights. In this case,
the Agency provided an affidavit by an EEO official stating that:
(1) there are unobstructed posters with EEO information, including
the 45 calendar-day time limit to contact an EEO counselor, and (2)
an EEO poster is displayed at the facility where Complainant worked.
The affidavit also indicated the period of time the notice was displayed
and a copy of the poster.
Here, we determine that the previous decision properly found that the
record, in the form of an Agency officialâs affidavit, established
that the facility where Complainant worked contained a September 2008
EEO poster, describing the 45 calendar-day time limit to contact an
EEO counselor. Even if an earlier version of the EEO poster had not
been posted at the facility from 2005 to 2007 due to Hurricane Katrina,
Complainant had constructive knowledge to contact an EEO counselor in
2008; consequently, his May 24, 2010 EEO Counselor contact would have
been untimely. Complainant provided no persuasive evidence that he
only suspected discrimination during the 45-day period that preceded his
counselor contact. The decision in EEOC Appeal No. 0120110204 remains
the Commission's decision. There is no further right of administrative
appeal on the decision of the Commission on this request.
COMPLAINANTâS 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 Commissionâs 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.
âAgencyâ or âdepartmentâ 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 (âRight to File A Civil Actionâ).
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
__5/10/11________________
Date
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169 | https://www.eeoc.gov/sites/default/files/migrated_files/decisions/0120121460.pdf | 0120121460.pdf | PDF | application/pdf | 11,314 | , Complainant, v. Ray Mabus, Secretary, Department of the Navy, Agency. | January
17, 2012 | Appeal Number: 0120121460
Background:
Complainant filed a formal complaint dated December 20, 2011, alleging that the Agency
subjected him to discrimination on t he basis of disability (bi -lateral carpal tunnel syndrome )
when:
The Injured Worker ’s Program (IWP) Office failed to reasonably accommodate his
disability when from July 14, 2009, through March 10, 2011, it did not find him a job
at Puget Sound Naval Shi pyard and Intermediate Maintenance Facility (PSNS/IMF).
The Agen cy noted that Complainant was initially sent home on July 14, 2009, when it could
not find work within his limitations . The Agency stated Complainant submitted a claim with
the Office of Wor kers’ Compensation (OWCP) and received wage loss compensation during
his absence. The Agency stated that when OWCP notified Complainant that his compensation
was going to end in March 2011, he returned to work. The Agency noted IWP had no work
available within Complainant’s physical restrictions so he contacted his home shop in an effort
to find work. The Agency noted that Complainant was returned to work on March 10, 2011,
and was released from IWP. The Agency noted Complainant first made contact with the EEO Office on October 12, 2011. The Agency stated that at the initial meeting, Complainant
alleged age discrimi nation, but he did not state an intention at that time to pursue the EEO
Counseling process.
The Agency noted that Complainant subsequently made contact with the EEO Office on
November 18, 2011, and told the EEO Specialist that he became aware on September 6, 2011, during a mandatory training session, that he was discriminated against by the IWP Program. The Agency found Complainant should have had a reasonable suspicion of discrimination when
he was told by the IWP Manager that they did not have work available within his restrictions in
July 2009, and March 2011. The Agency noted that a review of Complainant’s training
records show he atten ded training sessions in 2000, 2001, 2002, 2003, 2004, 2005, 2006,
2007, and 2008, all of which provided information regarding the time limits for contacting the EEO Office. In addition, the Agency noted that the Agency ’s Salute Newsletters provided
Compl ainant EEO contact information on a quarterly basis and that two of those newsletter s
were issued since Complainant returned to work, one on March 31, 2011, and another on July 7, 2011. Finally, the Agency noted the EEO contact information is clearly posted on the
official bulletin boards along Complainant’s shop.
On appeal, Complainant explains that he met with a co -worker (Person A) the first week of
December 2011, and that that is “when I knew without doubt I had been discriminated
against.” He states that he filed his c omplaint on December 20, 2011, within the 45- day time
limit. In addition, Complainant sta tes that when he returned to his Shop, he attended a
mandatory “all hands” EEO class and that this class “got me to thinking I may have been discriminated against. At this time I started to investigate to determine if I had been
discriminated against or not.” Complainant explains he contacted an EEO Counselor in
October 2011, to try to find out if he had been subjected to discrimination. He state s that he
“thought [he] had been treated improperly but did not know if it would be a real discrimination
complaint or not.” He states that he went to the EEO Counselor who briefly discussed the EEO process with him; however, he claims the EEO Counselor never helped him figure out if
he had been discriminated against or not. Complainant states that he talked to Pers on A the
first week of December 2011 , and notes that Person A told him that he had been discriminated
against because of his disability and not because of his age.
In response to Complainant’s appeal, the Agency states that the alleged discriminatory eve nt
occurred in March 2011; however, Complainant did not initiate contact with an EEO Counselor until October 12, 2011. The Agency states tha t based on his awareness of the lack
of work in Shop 17 within his medical limitations, his awareness of IWP’s inability to find him
work, and his awareness of his inability to return to his position of record due to his limitations
is sufficient to place him on notice of the duty to seek counseling.
Legal Analysis:
EEOC Regulation 29 C.F.R. §1614.105(a)(1) provides that an aggrieved person must initiate
contact with an EEO Counselor within 45 days of the date of the matter alleged to be discriminatory or, in the case of a personnel action, within 45 days of the effective date of the
action. EEOC Regulation 29 C.F.R. §1614.105(a)(2) allows the agency or the Commission to
extend the time limit if the complainant can establish that complainant was not aware of the
time limit, that complainant did not know and reasonably should not have known that the
discriminatory matter or personnel action occurred, that despite due diligence complainant was
prevented by circumstances beyond (his or her) cont rol from contacting the EEO Counselor
within the time limit, or for other reasons considered sufficient by the agency or Commission.
In the present case, we note Complainant does not contend that he was unaware of the
timeframe for initiating EEO Counsel or contact. Upon review , we find Complainant suspected
or reasonably should have suspected discrimination at the latest on March 10, 2011.
According to the EEO Counselor’s Report, Complainant first contacted the EEO Office on October 12, 2011. However, we note the record contains an EEO Complaints Office Contact
Sheet listing Complainant’s “Date of Contact” as September 23, 2011. A description on the Contact Sheet notes that Complainant stated that he had been out of work since July 2009, due
to surgery and that he returned to work on March 14, 2011. The Contact Sheet lists age as a
basis of discrimination; however, it states that Complainant could not identify any issues or alleged management official. The Contact sheet notes Complainant ’s contact was closed and
he was advised to contact CEAP (Civilian Employee Assistance Program) or OWCP for
resolution of his issues. We note that even assuming Complainant’s initial EEO contact occurred on September 23, 2011, this contact was still beyond the applicable 45 -day limitation
period. With regard to his October 2011 contact with an EEO Counselor and his discussion
with Person A in December 2011, mentioned on appeal, we note that both of these events
occurred after his September 23, 2011 assumed initial cont act date. Upon review, we find
Complainant has failed to provide an adequate justification for his delay in initiating EEO Counselor contact. Thus, we find the Agency properly dismissed Complainant’s complaint for
untimely counselor contact.
CONCLU SION
Final Decision:
Accordingly, the Agency’s final decision is AFFIRMED. | ,
Complainant,
v.
Ray Mabus,
Secretary,
Department of the Navy,
Agency.
Appeal No. 0120121460
Agency No. 12- 4523A -00095
DECISION
Complainant filed an appeal with this Commission from the Agency's decision dated January
17, 2012, dismissing his complaint of unlawful employment discrimination in violation of
Section 501 of the Rehabilitation Act of 1973 (Rehabi litation Act), as amended, 29 U.S.C.
§791 et seq. For the following reasons, the Agency’s final decision is AFFIRMED.
BACKGROUND
Complainant filed a formal complaint dated December 20, 2011, alleging that the Agency
subjected him to discrimination on t he basis of disability (bi -lateral carpal tunnel syndrome )
when:
The Injured Worker ’s Program (IWP) Office failed to reasonably accommodate his
disability when from July 14, 2009, through March 10, 2011, it did not find him a job
at Puget Sound Naval Shi pyard and Intermediate Maintenance Facility (PSNS/IMF).
The Agen cy noted that Complainant was initially sent home on July 14, 2009, when it could
not find work within his limitations . The Agency stated Complainant submitted a claim with
the Office of Wor kers’ Compensation (OWCP) and received wage loss compensation during
his absence. The Agency stated that when OWCP notified Complainant that his compensation
was going to end in March 2011, he returned to work. The Agency noted IWP had no work
available within Complainant’s physical restrictions so he contacted his home shop in an effort
to find work. The Agency noted that Complainant was returned to work on March 10, 2011,
and was released from IWP. The Agency noted Complainant first made contact with the EEO Office on October 12, 2011. The Agency stated that at the initial meeting, Complainant
alleged age discrimi nation, but he did not state an intention at that time to pursue the EEO
Counseling process.
The Agency noted that Complainant subsequently made contact with the EEO Office on
November 18, 2011, and told the EEO Specialist that he became aware on September 6, 2011, during a mandatory training session, that he was discriminated against by the IWP Program. The Agency found Complainant should have had a reasonable suspicion of discrimination when
he was told by the IWP Manager that they did not have work available within his restrictions in
July 2009, and March 2011. The Agency noted that a review of Complainant’s training
records show he atten ded training sessions in 2000, 2001, 2002, 2003, 2004, 2005, 2006,
2007, and 2008, all of which provided information regarding the time limits for contacting the EEO Office. In addition, the Agency noted that the Agency ’s Salute Newsletters provided
Compl ainant EEO contact information on a quarterly basis and that two of those newsletter s
were issued since Complainant returned to work, one on March 31, 2011, and another on July 7, 2011. Finally, the Agency noted the EEO contact information is clearly posted on the
official bulletin boards along Complainant’s shop.
On appeal, Complainant explains that he met with a co -worker (Person A) the first week of
December 2011, and that that is “when I knew without doubt I had been discriminated
against.” He states that he filed his c omplaint on December 20, 2011, within the 45- day time
limit. In addition, Complainant sta tes that when he returned to his Shop, he attended a
mandatory “all hands” EEO class and that this class “got me to thinking I may have been discriminated against. At this time I started to investigate to determine if I had been
discriminated against or not.” Complainant explains he contacted an EEO Counselor in
October 2011, to try to find out if he had been subjected to discrimination. He state s that he
“thought [he] had been treated improperly but did not know if it would be a real discrimination
complaint or not.” He states that he went to the EEO Counselor who briefly discussed the EEO process with him; however, he claims the EEO Counselor never helped him figure out if
he had been discriminated against or not. Complainant states that he talked to Pers on A the
first week of December 2011 , and notes that Person A told him that he had been discriminated
against because of his disability and not because of his age.
In response to Complainant’s appeal, the Agency states that the alleged discriminatory eve nt
occurred in March 2011; however, Complainant did not initiate contact with an EEO Counselor until October 12, 2011. The Agency states tha t based on his awareness of the lack
of work in Shop 17 within his medical limitations, his awareness of IWP’s inability to find him
work, and his awareness of his inability to return to his position of record due to his limitations
is sufficient to place him on notice of the duty to seek counseling.
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R. §1614.105(a)(1) provides that an aggrieved person must initiate
contact with an EEO Counselor within 45 days of the date of the matter alleged to be discriminatory or, in the case of a personnel action, within 45 days of the effective date of the
action. EEOC Regulation 29 C.F.R. §1614.105(a)(2) allows the agency or the Commission to
extend the time limit if the complainant can establish that complainant was not aware of the
time limit, that complainant did not know and reasonably should not have known that the
discriminatory matter or personnel action occurred, that despite due diligence complainant was
prevented by circumstances beyond (his or her) cont rol from contacting the EEO Counselor
within the time limit, or for other reasons considered sufficient by the agency or Commission.
In the present case, we note Complainant does not contend that he was unaware of the
timeframe for initiating EEO Counsel or contact. Upon review , we find Complainant suspected
or reasonably should have suspected discrimination at the latest on March 10, 2011.
According to the EEO Counselor’s Report, Complainant first contacted the EEO Office on October 12, 2011. However, we note the record contains an EEO Complaints Office Contact
Sheet listing Complainant’s “Date of Contact” as September 23, 2011. A description on the Contact Sheet notes that Complainant stated that he had been out of work since July 2009, due
to surgery and that he returned to work on March 14, 2011. The Contact Sheet lists age as a
basis of discrimination; however, it states that Complainant could not identify any issues or alleged management official. The Contact sheet notes Complainant ’s contact was closed and
he was advised to contact CEAP (Civilian Employee Assistance Program) or OWCP for
resolution of his issues. We note that even assuming Complainant’s initial EEO contact occurred on September 23, 2011, this contact was still beyond the applicable 45 -day limitation
period. With regard to his October 2011 contact with an EEO Counselor and his discussion
with Person A in December 2011, mentioned on appeal, we note that both of these events
occurred after his September 23, 2011 assumed initial cont act date. Upon review, we find
Complainant has failed to provide an adequate justification for his delay in initiating EEO Counselor contact. Thus, we find the Agency properly dismissed Complainant’s complaint for
untimely counselor contact.
CONCLU SION
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 untimel y, 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 y ou 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 a ction 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 o f 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 18 , 2013
Date | [
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170 | https://www.eeoc.gov/sites/default/files/migrated_files/decisions/0120110254.txt | 0120110254.txt | TXT | text/plain | 11,624 | Marilyn L. Callum, Complainant, v. Eric H. Holder, Jr., Attorney General, Department of Justice, (Executive Office of the U.S. Attorneys), Agency. | September 7, 2010 | Appeal Number: 0120110254
Background:
At the time of events giving rise to this complaint, Complainant worked as
an Administrative Assistant at the Agency's U.S. Attorney's Office in the
District of Minnesota. On August 13, 2007, Complainant filed a formal
complaint alleging that the Agency subjected her to discrimination on
the basis of race (African-American) when she first learned that the
U.S. Attorney allegedly called Complainant, "fat, black, and lazy,"
or words to that effect.
The Agency accepted the complaint and investigated the matter, and
Complainant requested a hearing before an EEOC Administrative Judge
(AJ). On May 20 2009, the Agency filed a motion to dismiss the
matter with the AJ on the grounds of untimely EEO counselor contact.
The Agency argued that Complainant conceded she learned of the alleged
remark made by the U.S. Attorney sometime between June 4 and 10, 2007.
She immediately discussed the matter with the office's Ethics Officer and
another management official, who presented her with a number of options,
including filing an EEO complaint and/or going to the Office of Special
Counsel. Complainant elected to file a complaint with the Office of
Special Counsel on June 26, 2007. Sometime between August 6-10, 2007,
Complainant also contacted an EEO counselor at the advice of a relative.1
In an affidavit submitted to the AJ opposing the dismissal, Complainant
stated that she was unaware of the need to contact an EEO counselor within
45 days and that she did not recall seeing any posters at the Agency
containing the required information.2 Further, during a deposition,
Complainant expressly denied ever filing an EEO complaint in the past,
and stated that she could not recall ever contacting an EEO counselor
in any of her past federal employment.
In June 2009, the AJ denied the Agency's motion to dismiss, finding
adequate grounds to extend the limitation period based on a finding that
Complainant was not aware of the regulatory 45-day limitation period
for seeking EEO counseling. The matter proceeded to a hearing.
After a hearing was held, but before a decision was issued, the Agency
renewed its motion to dismiss on May 12, 2010, based on newly discovered
evidence that Complainant had, in fact, been aware of the time limits for
contacting an EEO counselor. The Agency submitted a copy of a decision
in an earlier complaint filed by Complainant while she was employed
by another federal agency. The decision involved an appeal filed by
Complainant in an EEO complaint where the agency had issued a dismissal
on the grounds of untimely EEO counselor. See Callum v. Dept. of the
Air Force, Appeal No. 01975915 (December 10, 1998).
The AJ granted the Agency's renewed motion to dismiss. The AJ noted that
Complainant did not dispute that her EEO counselor contact was beyond
the 45-day limitation period, but again argued that she was entitled
to equitable tolling. However, the AJ reasoned that she had denied
the Agency's initial motion based on a finding that Complainant was
not aware of the limitation period based on the statements she made
in her affidavit and deposition. The AJ found that the evidence of
Complainant's earlier EEO complaint revealed that the representations
made in her affidavit and answers given in her deposition were simply
not true. The AJ said that since her prior denial of the Agency's
motion to dismiss was predicated on the material fact that Complainant
had no knowledge of the 45-day limitation period, and it had now been
established that she had actual knowledge of the applicable timeframe,
she cannot argue that she was "misguided" by Agency officials and,
therefore, entitled to equitable tolling. Based on this analysis,
the AJ granted the Agency's motion to dismiss.
The Agency adopted the AJ's dismissal. The instant appeal followed.
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
an Administrative Assistant at the Agency's U.S. Attorney's Office in the
District of Minnesota. On August 13, 2007, Complainant filed a formal
complaint alleging that the Agency subjected her to discrimination on
the basis of race (African-American) when she first learned that the
U.S. Attorney allegedly called Complainant, "fat, black, and lazy,"
or words to that effect.
The Agency accepted the complaint and investigated the matter, and
Complainant requested a hearing before an EEOC Administrative Judge
(AJ). On May 20 2009, the Agency filed a motion to dismiss the
matter with the AJ on the grounds of untimely EEO counselor contact.
The Agency argued that Complainant conceded she learned of the alleged
remark made by the U.S. Attorney sometime between June 4 and 10, 2007.
She immediately discussed the matter with the office's Ethics Officer and
another management official, who presented her with a number of options,
including filing an EEO complaint and/or going to the Office of Special
Counsel. Complainant elected to file a complaint with the Office of
Special Counsel on June 26, 2007. Sometime between August 6-10, 2007,
Complainant also contacted an EEO counselor at the advice of a relative.1
In an affidavit submitted to the AJ opposing the dismissal, Complainant
stated that she was unaware of the need to contact an EEO counselor within
45 days and that she did not recall seeing any posters at the Agency
containing the required information.2 Further, during a deposition,
Complainant expressly denied ever filing an EEO complaint in the past,
and stated that she could not recall ever contacting an EEO counselor
in any of her past federal employment.
In June 2009, the AJ denied the Agency's motion to dismiss, finding
adequate grounds to extend the limitation period based on a finding that
Complainant was not aware of the regulatory 45-day limitation period
for seeking EEO counseling. The matter proceeded to a hearing.
After a hearing was held, but before a decision was issued, the Agency
renewed its motion to dismiss on May 12, 2010, based on newly discovered
evidence that Complainant had, in fact, been aware of the time limits for
contacting an EEO counselor. The Agency submitted a copy of a decision
in an earlier complaint filed by Complainant while she was employed
by another federal agency. The decision involved an appeal filed by
Complainant in an EEO complaint where the agency had issued a dismissal
on the grounds of untimely EEO counselor. See Callum v. Dept. of the
Air Force, Appeal No. 01975915 (December 10, 1998).
The AJ granted the Agency's renewed motion to dismiss. The AJ noted that
Complainant did not dispute that her EEO counselor contact was beyond
the 45-day limitation period, but again argued that she was entitled
to equitable tolling. However, the AJ reasoned that she had denied
the Agency's initial motion based on a finding that Complainant was
not aware of the limitation period based on the statements she made
in her affidavit and deposition. The AJ found that the evidence of
Complainant's earlier EEO complaint revealed that the representations
made in her affidavit and answers given in her deposition were simply
not true. The AJ said that since her prior denial of the Agency's
motion to dismiss was predicated on the material fact that Complainant
had no knowledge of the 45-day limitation period, and it had now been
established that she had actual knowledge of the applicable timeframe,
she cannot argue that she was "misguided" by Agency officials and,
therefore, entitled to equitable tolling. Based on this analysis,
the AJ granted the Agency's motion to dismiss.
The Agency adopted the AJ's dismissal. The instant appeal followed.
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R. § 1614.105(a)(1) requires that complaints of
discrimination should be brought to the attention of the Equal Employment
Opportunity Counselor within forty-five (45) days of the date of the
matter alleged to be discriminatory or, in the case of a personnel
action, within forty-five (45) days of the effective date of the action.
The 45-day time limit shall be extended when the individual shows that she
was not notified of the time limits and was not otherwise aware of them.
29 C.F.R. § 1614.105(a)(2).
It is undisputed that Complainant's initial EEO counselor contact was
beyond the required limitation period from when she first learned of the
alleged discriminatory event. Complainant, however, argues that she is
entitled to an extension of the time period because she did not know about
the 45-day requirement. The AJ, however, specifically found that based
on Complainant's experience with a prior EEO complaint that had also been
dismissed on timeliness grounds, it was reasonable to conclude that she
had actual knowledge of the limitation period and should be bound by it.
Substantial evidence of record supports the AJ's
Final Decision:
Accordingly, the Agency's final decision dismissing Complainant's complaint is AFFIRMED. | Marilyn L. Callum,
Complainant,
v.
Eric H. Holder, Jr.,
Attorney General,
Department of Justice,
(Executive Office of the U.S. Attorneys),
Agency.
Appeal No. 0120110254
Hearing No. 443-2009-00073X
Agency No. USA200700508
DECISION
Complainant filed a timely appeal with this Commission from the Agency's
decision dated September 7, 2010, dismissing her complaint of unlawful
employment discrimination in violation of Title VII of the Civil
Rights Act of 1964 (Title VII), as amended, 42 U.S.C. § 2000e et seq.
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
an Administrative Assistant at the Agency's U.S. Attorney's Office in the
District of Minnesota. On August 13, 2007, Complainant filed a formal
complaint alleging that the Agency subjected her to discrimination on
the basis of race (African-American) when she first learned that the
U.S. Attorney allegedly called Complainant, "fat, black, and lazy,"
or words to that effect.
The Agency accepted the complaint and investigated the matter, and
Complainant requested a hearing before an EEOC Administrative Judge
(AJ). On May 20 2009, the Agency filed a motion to dismiss the
matter with the AJ on the grounds of untimely EEO counselor contact.
The Agency argued that Complainant conceded she learned of the alleged
remark made by the U.S. Attorney sometime between June 4 and 10, 2007.
She immediately discussed the matter with the office's Ethics Officer and
another management official, who presented her with a number of options,
including filing an EEO complaint and/or going to the Office of Special
Counsel. Complainant elected to file a complaint with the Office of
Special Counsel on June 26, 2007. Sometime between August 6-10, 2007,
Complainant also contacted an EEO counselor at the advice of a relative.1
In an affidavit submitted to the AJ opposing the dismissal, Complainant
stated that she was unaware of the need to contact an EEO counselor within
45 days and that she did not recall seeing any posters at the Agency
containing the required information.2 Further, during a deposition,
Complainant expressly denied ever filing an EEO complaint in the past,
and stated that she could not recall ever contacting an EEO counselor
in any of her past federal employment.
In June 2009, the AJ denied the Agency's motion to dismiss, finding
adequate grounds to extend the limitation period based on a finding that
Complainant was not aware of the regulatory 45-day limitation period
for seeking EEO counseling. The matter proceeded to a hearing.
After a hearing was held, but before a decision was issued, the Agency
renewed its motion to dismiss on May 12, 2010, based on newly discovered
evidence that Complainant had, in fact, been aware of the time limits for
contacting an EEO counselor. The Agency submitted a copy of a decision
in an earlier complaint filed by Complainant while she was employed
by another federal agency. The decision involved an appeal filed by
Complainant in an EEO complaint where the agency had issued a dismissal
on the grounds of untimely EEO counselor. See Callum v. Dept. of the
Air Force, Appeal No. 01975915 (December 10, 1998).
The AJ granted the Agency's renewed motion to dismiss. The AJ noted that
Complainant did not dispute that her EEO counselor contact was beyond
the 45-day limitation period, but again argued that she was entitled
to equitable tolling. However, the AJ reasoned that she had denied
the Agency's initial motion based on a finding that Complainant was
not aware of the limitation period based on the statements she made
in her affidavit and deposition. The AJ found that the evidence of
Complainant's earlier EEO complaint revealed that the representations
made in her affidavit and answers given in her deposition were simply
not true. The AJ said that since her prior denial of the Agency's
motion to dismiss was predicated on the material fact that Complainant
had no knowledge of the 45-day limitation period, and it had now been
established that she had actual knowledge of the applicable timeframe,
she cannot argue that she was "misguided" by Agency officials and,
therefore, entitled to equitable tolling. Based on this analysis,
the AJ granted the Agency's motion to dismiss.
The Agency adopted the AJ's dismissal. The instant appeal followed.
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R. § 1614.105(a)(1) requires that complaints of
discrimination should be brought to the attention of the Equal Employment
Opportunity Counselor within forty-five (45) days of the date of the
matter alleged to be discriminatory or, in the case of a personnel
action, within forty-five (45) days of the effective date of the action.
The 45-day time limit shall be extended when the individual shows that she
was not notified of the time limits and was not otherwise aware of them.
29 C.F.R. § 1614.105(a)(2).
It is undisputed that Complainant's initial EEO counselor contact was
beyond the required limitation period from when she first learned of the
alleged discriminatory event. Complainant, however, argues that she is
entitled to an extension of the time period because she did not know about
the 45-day requirement. The AJ, however, specifically found that based
on Complainant's experience with a prior EEO complaint that had also been
dismissed on timeliness grounds, it was reasonable to conclude that she
had actual knowledge of the limitation period and should be bound by it.
Substantial evidence of record supports the AJ's conclusion concerning
Complainant's actual knowledge of the applicable limitation period.
Moreover, the AJ correctly dismissed Complainant's arguments that she was
"misguided" by the Agency officials she initially discussed that matter
with because, although they presented her with the option of pursuing an
EEO complaint, they did not inform her of the 45-day limitation period
or let her know that pursuing the option of filling a complaint with
the Office of Special Counsel would not toll the EEO limitation period.
As the AJ noted, any omissions of information by the Agency officials
were of no consequence because the evidence establishes that Complainant
had actual knowledge of the limitation period - she did not have to
rely on the information she received from the Agency. We also note
that the written instructions that preface the June 2007 complaint form
Complainant filed with the Office of Special Counsel, specifically state
that allegations of discrimination should be "immediately" brought to
the attention of an agency EEO office. The notice goes on to state:
"There are specific time limits for filing such complaints. Filing a
complaint with OSC [Office of Special Counsel] will not relieve you of
the obligation to file a complaint with the agency's EEO office within
the time prescribed by EEOC regulations (at 29 C.F.R. Part 1614)."
On appeal, Complainant has presented no additional persuasive arguments
or evidence warranting an extension of the time limit for initiating
EEO Counselor contact. The Commission finds the AJ correctly reviewed
the matter and provided the proper analysis.
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
March 2, 2011
__________________
Date
1 The facility where Complainant worked did not have an EEO counselor
onsite. The record indicates that Complainant first contacted the
EEOC's Minneapolis office on August 1, 2007, where she was referred to
the Agency's EEO counseling program.
2 The record contains an affidavit from a management official indicating
such a poster was posted in Complainant's workplace.
??
??
??
??
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171 | https://www.eeoc.gov/sites/default/files/migrated_files/decisions/0120103523.txt | 0120103523.txt | TXT | text/plain | 10,690 | Phu G. Huynh, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Pacific Area), Agency. | August 11, 2010 | Appeal Number: 0120103523
Complaint Allegations:
In his complaint, Complainant alleged that the Agency subjected him to discrimination on the bases of race (Vietnamese)1, age (51), and in reprisal for prior protected EEO activity under Title VII when Complainant was issued a Notice of Removal on June 23, 2009, effective July 22, 2009. In its final decision, the Agency dismissed Complainant's complaint for untimely EEO Counselor contact. The Agency found that Complainant failed to initiate contact with an EEO Counselor within 45 days of the date of the alleged discriminatory action, his removal from his position at the Agency. CONTENTIONS ON APPEAL On appeal, Complainant contends that his initial June 24, 2010, contact with an EEO Counselor was timely because it was within 45 days of the arbitration decision on his removal, which was issued on June 15, 2010. Complainant further contends that June 15, 2010, was the effective date of his removal, because under the NALC-USPS Joint Resolution process, once a grievance is filed, removal is deferred until a final decision is made. Complainant offers documentation from two grievance actions, one stemming from his removal and one stemming from a 14-day suspension he received earlier, to support his position that the 45-day time limit for initiating EEO Counselor contact should be extended. Complainant also contends that he was not aware of the time limit for contacting an EEO Counselor.
Background:
In his complaint, Complainant alleged that the Agency subjected
him to discrimination on the bases of race (Vietnamese)1, age (51),
and in reprisal for prior protected EEO activity under Title VII when
Complainant was issued a Notice of Removal on June 23, 2009, effective
July 22, 2009.
In its final decision, the Agency dismissed Complainant's complaint for
untimely EEO Counselor contact. The Agency found that Complainant failed
to initiate contact with an EEO Counselor within 45 days of the date of
the alleged discriminatory action, his removal from his position at the
Agency.
CONTENTIONS ON APPEAL
On appeal, Complainant contends that his initial June 24, 2010, contact
with an EEO Counselor was timely because it was within 45 days of the
arbitration decision on his removal, which was issued on June 15, 2010.
Complainant further contends that June 15, 2010, was the effective date
of his removal, because under the NALC-USPS Joint Resolution process,
once a grievance is filed, removal is deferred until a final decision
is made. Complainant offers documentation from two grievance actions,
one stemming from his removal and one stemming from a 14-day suspension
he received earlier, to support his position that the 45-day time limit
for initiating EEO Counselor contact should be extended. Complainant
also contends that he was not aware of the time limit for contacting an
EEO Counselor.
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
In his complaint, Complainant alleged that the Agency subjected
him to discrimination on the bases of race (Vietnamese)1, age (51),
and in reprisal for prior protected EEO activity under Title VII when
Complainant was issued a Notice of Removal on June 23, 2009, effective
July 22, 2009.
In its final decision, the Agency dismissed Complainant's complaint for
untimely EEO Counselor contact. The Agency found that Complainant failed
to initiate contact with an EEO Counselor within 45 days of the date of
the alleged discriminatory action, his removal from his position at the
Agency.
CONTENTIONS ON APPEAL
On appeal, Complainant contends that his initial June 24, 2010, contact
with an EEO Counselor was timely because it was within 45 days of the
arbitration decision on his removal, which was issued on June 15, 2010.
Complainant further contends that June 15, 2010, was the effective date
of his removal, because under the NALC-USPS Joint Resolution process,
once a grievance is filed, removal is deferred until a final decision
is made. Complainant offers documentation from two grievance actions,
one stemming from his removal and one stemming from a 14-day suspension
he received earlier, to support his position that the 45-day time limit
for initiating EEO Counselor contact should be extended. Complainant
also contends that he was not aware of the time limit for contacting an
EEO Counselor.
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R. § 1614.107(a)(2) provides for the dismissal
of complaints where the complainant 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 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 time limit 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. McLouglin v. Dep't. of the Treasury,
EEOC Request No. 05A01093 (Apr. 24, 2003).
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. Hathcock v. Dep't. of the Air Force.
Appeal No. 0120093324 (Jan. 22, 2010).
Where timeliness is an issue, an 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). Further, the Agency has the
burden of providing evidence or proof to support any decision it makes
regarding the timeliness of a thing. See Ericson v. Dep't. of the Army,
EEOC Request No. 05920623 (Jan. 14, 1993).
The record discloses that the alleged discriminatory event occurred on
July 22, 2009, but Complainant did not initiate contact with an EEO
Counselor until June 24, 2010, which is beyond the 45-day limitation
period. As noted above, Complainant contends that his grievance
action tolled the effective date of his removal and, consequently,
the 45-day limitation period. Because of this, Complainant contends,
he had 45 days from June 15, 2010, the date of the arbitration decision,
to initiate EEO Counselor contact.
Complainant's contention that his grievance action tolled his time limit
for initiating EEO Counselor contact is without merit. The Commission
has consistently held that utilization of internal agency procedures,
union grievances, and other remedial processes do not toll the time
limit for contacting an EEO Counselor. See Greene v. U.S. Postal Serv.,
Appeal No. 0120074033 (Dec. 4, 2007); see Lao v. U.S. Postal Serv.,
Appeal No. 01975621 (May 6, 1998) (citing Kramer v. U.S. Postal Serv.,
Appeal No. 01954021 (Oct. 5, 1995).
In this case, the record shows that Complainant was aware of his removal
and the 45-day time limit to initiate EEO Counselor contact. It is
undisputed that Complainant received a Notice of Removal, stating that
he was to be removed from the Agency effective July 22, 2009. Further,
Complainant's prior EEO activity indicates that he was aware of the
45-day time limit to initiate EEO Counselor Contact. The Commission has
consistently held that a complainant who has engaged in prior EEO activity
is deemed aware of the time frames required for filing complaints in the
EEO process. Kader v. U.S. Postal Serv., Appeal No. 01974448 (Jun. 24,
1999) (citing Coffey v. Dep't. of the Navy, EEOC Request No. 05901006
(Nov. 16, 1990); Patrick v. U.S. Postal Serv., EEOC Request No. 05940633
(Nov. 10, 1994)).
The 45-day time limit for initiating EEO Counselor contact regarding
Complainant's Notice of Removal began to run not later then the Notice of
Removal's effective date of July 22, 2009. Complainant did not initiate
EEO Counselor contact until June 24, 2010, nearly 11 months after the
effective date of his removal. Complainant has presented no persuasive
evidence that would warrant an extension of the 45-day time limit to
initiate EEO Counselor contact. Thus, we find that the Agency properly
dismissed Complainant's complaint for untimely EEO Counselor contact.
Final Decision:
Accordingly, the Agency's final decision dismissing Complainant's complaint is AFFIRMED. | Phu G. Huynh,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Pacific Area),
Agency.
Appeal No. 0120103523
Agency No. 4F-945-0260-10
DECISION
Complainant filed a timely appeal with this Commission from the Agency's
decision dated August 11, 2010, dismissing his complaint of unlawful
employment discrimination in violation of Title VII of the Civil Rights
Act of 1964 (Title VII), as amended, 42 U.S.C. § 2000e et seq., and
the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29
U.S.C. § 621 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
In his complaint, Complainant alleged that the Agency subjected
him to discrimination on the bases of race (Vietnamese)1, age (51),
and in reprisal for prior protected EEO activity under Title VII when
Complainant was issued a Notice of Removal on June 23, 2009, effective
July 22, 2009.
In its final decision, the Agency dismissed Complainant's complaint for
untimely EEO Counselor contact. The Agency found that Complainant failed
to initiate contact with an EEO Counselor within 45 days of the date of
the alleged discriminatory action, his removal from his position at the
Agency.
CONTENTIONS ON APPEAL
On appeal, Complainant contends that his initial June 24, 2010, contact
with an EEO Counselor was timely because it was within 45 days of the
arbitration decision on his removal, which was issued on June 15, 2010.
Complainant further contends that June 15, 2010, was the effective date
of his removal, because under the NALC-USPS Joint Resolution process,
once a grievance is filed, removal is deferred until a final decision
is made. Complainant offers documentation from two grievance actions,
one stemming from his removal and one stemming from a 14-day suspension
he received earlier, to support his position that the 45-day time limit
for initiating EEO Counselor contact should be extended. Complainant
also contends that he was not aware of the time limit for contacting an
EEO Counselor.
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R. § 1614.107(a)(2) provides for the dismissal
of complaints where the complainant 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 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 time limit 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. McLouglin v. Dep't. of the Treasury,
EEOC Request No. 05A01093 (Apr. 24, 2003).
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. Hathcock v. Dep't. of the Air Force.
Appeal No. 0120093324 (Jan. 22, 2010).
Where timeliness is an issue, an 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). Further, the Agency has the
burden of providing evidence or proof to support any decision it makes
regarding the timeliness of a thing. See Ericson v. Dep't. of the Army,
EEOC Request No. 05920623 (Jan. 14, 1993).
The record discloses that the alleged discriminatory event occurred on
July 22, 2009, but Complainant did not initiate contact with an EEO
Counselor until June 24, 2010, which is beyond the 45-day limitation
period. As noted above, Complainant contends that his grievance
action tolled the effective date of his removal and, consequently,
the 45-day limitation period. Because of this, Complainant contends,
he had 45 days from June 15, 2010, the date of the arbitration decision,
to initiate EEO Counselor contact.
Complainant's contention that his grievance action tolled his time limit
for initiating EEO Counselor contact is without merit. The Commission
has consistently held that utilization of internal agency procedures,
union grievances, and other remedial processes do not toll the time
limit for contacting an EEO Counselor. See Greene v. U.S. Postal Serv.,
Appeal No. 0120074033 (Dec. 4, 2007); see Lao v. U.S. Postal Serv.,
Appeal No. 01975621 (May 6, 1998) (citing Kramer v. U.S. Postal Serv.,
Appeal No. 01954021 (Oct. 5, 1995).
In this case, the record shows that Complainant was aware of his removal
and the 45-day time limit to initiate EEO Counselor contact. It is
undisputed that Complainant received a Notice of Removal, stating that
he was to be removed from the Agency effective July 22, 2009. Further,
Complainant's prior EEO activity indicates that he was aware of the
45-day time limit to initiate EEO Counselor Contact. The Commission has
consistently held that a complainant who has engaged in prior EEO activity
is deemed aware of the time frames required for filing complaints in the
EEO process. Kader v. U.S. Postal Serv., Appeal No. 01974448 (Jun. 24,
1999) (citing Coffey v. Dep't. of the Navy, EEOC Request No. 05901006
(Nov. 16, 1990); Patrick v. U.S. Postal Serv., EEOC Request No. 05940633
(Nov. 10, 1994)).
The 45-day time limit for initiating EEO Counselor contact regarding
Complainant's Notice of Removal began to run not later then the Notice of
Removal's effective date of July 22, 2009. Complainant did not initiate
EEO Counselor contact until June 24, 2010, nearly 11 months after the
effective date of his removal. Complainant has presented no persuasive
evidence that would warrant an extension of the 45-day time limit to
initiate EEO Counselor contact. Thus, we find that the Agency properly
dismissed Complainant's complaint for untimely EEO Counselor contact.
CONCLUSION
In conclusion, we find that the Agency properly dismissed Complainant's
claim for untimely EEO Counselor contact. 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
February 4, 2011
Date
1 We note that the Commission considers "Vietnamese" to denote a national
origin rather than a race.
??
??
??
??
01-2010-3523
| [
"Howard v. Dep't. of the Navy, EEOC Request No. 05970852 (Feb. 11, 1999)",
"Williams v. Dep't. of Defense, EEOC Request No. 05920506 (Aug. 25, 1992)",
"Ericson v. Dep't. of the Army, EEOC Request No. 05920623 (Jan. 14, 1993)",
"Coffey v. Dep't. of the Navy, EEOC Request No. 05901006 (Nov. 16, 1990)",
"Patri... | [
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172 | https://www.eeoc.gov/sites/default/files/migrated_files/decisions/0120141197.r.txt | 0120141197.r.txt | TXT | text/plain | 11,922 | December 20, 2013 | Appeal Number: 0120141197
Background:
During the period at issue, Complainant worked as a Program Manager at the Agency's Office of Civil Rights in College Park, Georgia.
On September 30, 2013, Complainant initiated EEO Counselor contact. Informal efforts to resolve his concerns were unsuccessful.
On December 12, 2013, Complainant filed the instant formal complaint. Therein, Complainant alleged that the Agency subjected him to discrimination on the bases of disability and in reprisal for prior EEO activity when:
1. on or about July 3, 2013, his Intergovernmental Personnel Act (IPA) detail assignment ended, and he was not granted an extension; and
2. Agency management withheld his Office of Workers' Compensation Programs (OWCP) claim dated September 18, 2013.
The Agency dismissed claim 1 on the grounds of untimely EEO Counselor contact pursuant to 29 C.F.R. § 1614.107(a)(2). The Agency determined that the alleged discriminatory event occurred on July 3, 2013, but that Complainant did not initiate EEO Counselor contact until September 30, 2013, which was beyond the 45-day limitation period.
Further, the Agency dismissed claim 2 on the grounds that this claim had not been raised with an EEO Counselor and that it is not "like and related" to matters for which Complainant underwent EEO counseling, pursuant to 29 C.F.R. § 1614.107(a)(2).
Complainant, on appeal, argues that the Agency's dismissal of the formal complaint was "based upon wrong information that was provided to them. The wrongful information was presented by the office of civil rights for the FAA, which is headed by one of the named management officials ([Acting Assistant Administrator for Civil Rights]). After providing this misinformation to DOT, and DOCR, they failed to provide me with a copy of the counselor's report, as required by MD-110 and the policy, and practice of DOT."
In response, the Agency argued that in regard to claim 1, the effective date of the alleged discriminatory event was July 31, 2013 when Complainant's IPA detail ended. The Agency argues, with regard to timeliness, that "[w]hat matters is that there was a personnel action, or lack thereof, that he believes was discriminatory/retaliatory. That is, whether or not Appellant was seeking to extend his extant detail or get a new detail the answer was the same: no, return to your position of record...the denial of his request occurred on or before July 31, 2013."
The Agency argues that the fact that Complainant learned sometime in September 2013 that a named female employee was allegedly placed on a detail "does not retroactively convert the Agency's July [2013] decision to end his detail into an act of retaliation." The Agency stated that Complainant "encumbered a position in the Agency's Office of Civil Rights. Appellant was fully aware of the time lines set forth by the EEOC." Moreover, the Agency argued that Complainant had engaged in prior EEO activity, and that he was or should have been familiar with the EEO complaint process and the applicable time periods.
With respect to claim 2, the Agency argued that there was nothing in the EEO Counselor's Report that indicated Complainant brought to the EEO Counselor's attention his claim that management delayed or interfered with his OWCP claim. Further, the Agency dismissed claim 2 on the alternative grounds of failure to state a claim, pursuant to 29 C.F.R. § 1614.107(a)(1), because this matter constituted an impermissible collateral attack on the OWCP process. Specifically, the Agency stated that Complainant should have raised his allegations through the OWCP process, not through the EEO process.
The instant appeal followed.
Legal Analysis:
EEOC Regulation 29 C.F.R. § 1614.105(a)(1) requires that complaints of discrimination should be brought to the attention of the Equal Employment Opportunity Counselor within forty-five (45) days of the date of the matter alleged to be discriminatory or, in the case of personnel action, within forty-five (45) days of the effective date of the action. The Commission has adopted a "reasonable suspicion" standard (as opposed to a "supportive facts" standard) to determine when the forty-five (45) day limitation period is triggered. See Howard v. Department of the Navy, EEOC Request No. 05970852 (February 11, 1999). Thus, the time limitation is not triggered until a Complainant reasonably suspects discrimination, but before all the facts that support a charge of discrimination have become apparent.
The record discloses that the alleged discriminatory event occurred on July 31, 2013, but that Complainant did not initiate contact with an EEO Counselor until September 30, 2013, which is beyond the forty-five day limitation period. On appeal, Complainant has presented no persuasive arguments or evidence warranting an extension of the time limit for initiating EEO Counselor contact. The record reflects in the EEO Counselor's Report, Complainant stated that when his detail ended on July 31, 2013, he was ordered to report to the Acting Assistant Administrator when he returned to the office...the Appellant states that he then learned that [Acting Assistant Administrator] approved [female employee] to the same type of assignment that he did not get approval for." We find that it is clear from the record that Complainant had reasonable suspicion of discrimination at the time of the alleged discriminatory event. Complainant did not have to wait for another employee to be approved for the same type of assignment that he did not get approval for.
Claim 2
The Agency determined that Complainant failed to bring claim 2 to the attention of an EEO Counselor. 29 C.F.R. § 1614.107(a)(2) states that an agency shall dismiss a complaint that raises a matter that has not been brought to the attention of an EEO Counselor and is not like or related to a matter that has been brought to the attention of an EEO Counselor.
We note in her report, the EEO Counselor stated that Complainant claimed that he was discriminated against on the bases of disability and in reprisal for prior EEO activity when on July 3, 2013, his IPA detail assignment ended, and he was not granted an extension.
Further, we note in the National Intake Form, the Intake Manager stated that on September 30, 2013, Complainant stated that he was discriminated against in reprisal for prior EEO activity when he "requested an extension of his Interpersonal Act (IPA) assignment from [Acting Assistant Administrator] through [National President of NBCFAE]. [Acting Assistant Administrator] states she will not approve any details or IPAs because she could not afford to lose any of her staff and other monetary concerns. Aggrieved learned [Acting Assistant Administrator] approved [co-worker's] to the exact same type of assignment that he did not get approval for." Therefore, we find that claim 2 was not raised with the EEO Counselor, and is not like or related to the claim raised with an EEO Counselor in this matter.
The Agency's final decision dismissing Complainant's formal complaint for the reasons stated herein is AFFIRMED.1 | Complainant,
v.
Anthony Foxx,
Secretary,
Department of Transportation
(Federal Aviation Administration),
Agency.
Appeal No. 0120141197
Agency No. 2013-25355-FAA-03
DECISION
Complainant filed a timely appeal with this Commission from the Agency's final decision dated December 20, 2013, 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.
BACKGROUND
During the period at issue, Complainant worked as a Program Manager at the Agency's Office of Civil Rights in College Park, Georgia.
On September 30, 2013, Complainant initiated EEO Counselor contact. Informal efforts to resolve his concerns were unsuccessful.
On December 12, 2013, Complainant filed the instant formal complaint. Therein, Complainant alleged that the Agency subjected him to discrimination on the bases of disability and in reprisal for prior EEO activity when:
1. on or about July 3, 2013, his Intergovernmental Personnel Act (IPA) detail assignment ended, and he was not granted an extension; and
2. Agency management withheld his Office of Workers' Compensation Programs (OWCP) claim dated September 18, 2013.
The Agency dismissed claim 1 on the grounds of untimely EEO Counselor contact pursuant to 29 C.F.R. § 1614.107(a)(2). The Agency determined that the alleged discriminatory event occurred on July 3, 2013, but that Complainant did not initiate EEO Counselor contact until September 30, 2013, which was beyond the 45-day limitation period.
Further, the Agency dismissed claim 2 on the grounds that this claim had not been raised with an EEO Counselor and that it is not "like and related" to matters for which Complainant underwent EEO counseling, pursuant to 29 C.F.R. § 1614.107(a)(2).
Complainant, on appeal, argues that the Agency's dismissal of the formal complaint was "based upon wrong information that was provided to them. The wrongful information was presented by the office of civil rights for the FAA, which is headed by one of the named management officials ([Acting Assistant Administrator for Civil Rights]). After providing this misinformation to DOT, and DOCR, they failed to provide me with a copy of the counselor's report, as required by MD-110 and the policy, and practice of DOT."
In response, the Agency argued that in regard to claim 1, the effective date of the alleged discriminatory event was July 31, 2013 when Complainant's IPA detail ended. The Agency argues, with regard to timeliness, that "[w]hat matters is that there was a personnel action, or lack thereof, that he believes was discriminatory/retaliatory. That is, whether or not Appellant was seeking to extend his extant detail or get a new detail the answer was the same: no, return to your position of record...the denial of his request occurred on or before July 31, 2013."
The Agency argues that the fact that Complainant learned sometime in September 2013 that a named female employee was allegedly placed on a detail "does not retroactively convert the Agency's July [2013] decision to end his detail into an act of retaliation." The Agency stated that Complainant "encumbered a position in the Agency's Office of Civil Rights. Appellant was fully aware of the time lines set forth by the EEOC." Moreover, the Agency argued that Complainant had engaged in prior EEO activity, and that he was or should have been familiar with the EEO complaint process and the applicable time periods.
With respect to claim 2, the Agency argued that there was nothing in the EEO Counselor's Report that indicated Complainant brought to the EEO Counselor's attention his claim that management delayed or interfered with his OWCP claim. Further, the Agency dismissed claim 2 on the alternative grounds of failure to state a claim, pursuant to 29 C.F.R. § 1614.107(a)(1), because this matter constituted an impermissible collateral attack on the OWCP process. Specifically, the Agency stated that Complainant should have raised his allegations through the OWCP process, not through the EEO process.
The instant appeal followed.
ANALYSIS AND FINDINGS
Claim 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 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.
The record discloses that the alleged discriminatory event occurred on July 31, 2013, but that Complainant did not initiate contact with an EEO Counselor until September 30, 2013, which is beyond the forty-five day limitation period. On appeal, Complainant has presented no persuasive arguments or evidence warranting an extension of the time limit for initiating EEO Counselor contact. The record reflects in the EEO Counselor's Report, Complainant stated that when his detail ended on July 31, 2013, he was ordered to report to the Acting Assistant Administrator when he returned to the office...the Appellant states that he then learned that [Acting Assistant Administrator] approved [female employee] to the same type of assignment that he did not get approval for." We find that it is clear from the record that Complainant had reasonable suspicion of discrimination at the time of the alleged discriminatory event. Complainant did not have to wait for another employee to be approved for the same type of assignment that he did not get approval for.
Claim 2
The Agency determined that Complainant failed to bring claim 2 to the attention of an EEO Counselor. 29 C.F.R. § 1614.107(a)(2) states that an agency shall dismiss a complaint that raises a matter that has not been brought to the attention of an EEO Counselor and is not like or related to a matter that has been brought to the attention of an EEO Counselor.
We note in her report, the EEO Counselor stated that Complainant claimed that he was discriminated against on the bases of disability and in reprisal for prior EEO activity when on July 3, 2013, his IPA detail assignment ended, and he was not granted an extension.
Further, we note in the National Intake Form, the Intake Manager stated that on September 30, 2013, Complainant stated that he was discriminated against in reprisal for prior EEO activity when he "requested an extension of his Interpersonal Act (IPA) assignment from [Acting Assistant Administrator] through [National President of NBCFAE]. [Acting Assistant Administrator] states she will not approve any details or IPAs because she could not afford to lose any of her staff and other monetary concerns. Aggrieved learned [Acting Assistant Administrator] approved [co-worker's] to the exact same type of assignment that he did not get approval for." Therefore, we find that claim 2 was not raised with the EEO Counselor, and is not like or related to the claim raised with an EEO Counselor in this matter.
The Agency's final decision dismissing Complainant's formal complaint for the reasons stated herein is AFFIRMED.1
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
The Commission may, in its discretion, reconsider the decision in this case if the Complainant or the Agency submits a written request containing arguments or evidence which tend to establish that:
1. The appellate decision involved a clearly erroneous interpretation of material fact or law; or
2. The appellate decision will have a substantial impact on the policies, practices, or operations of the Agency.
Requests to reconsider, with supporting statement or brief, must be filed with the Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision or within twenty (20) calendar days of receipt of another party's timely request for reconsideration. See 29 C.F.R. § 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at 9-18 (November 9, 1999). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC 20013. In the absence of a legible postmark, the request to reconsider shall be deemed timely filed if it is received by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. The request or opposition must also include proof of service on the other party.
Failure to file within the time period will result in dismissal of your request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted with your request for reconsideration. The Commission will consider requests for reconsideration filed after the deadline only in very limited circumstances. See 29 C.F.R. § 1614.604(c).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S0610)
You have the right to file a civil action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision. If you file a civil action, you must name as the defendant in the complaint the person who is the official Agency head or department head, identifying that person by his or her full name and official title. Failure to do so may result in the dismissal of your case in court. "Agency" or "department" means the national organization, and not the local office, facility or department in which you work. If you file a request to reconsider and also file a civil action, filing a civil action will terminate the administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z0610)
If you decide to file a civil action, and if you do not have or cannot afford the services of an attorney, you may request from the Court that the Court appoint an attorney to represent you and that the Court also permit you to file the action without payment of fees, costs, or other security. See Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq.; the Rehabilitation Act of 1973, as amended, 29 U.S.C. §§ 791, 794(c). The grant or denial of the request is within the sole discretion of the Court. Filing a request for an attorney with the Court does not extend your time in which to file a civil action. Both the request and the civil action must be filed within the time limits as stated in the paragraph above ("Right to File a Civil Action").
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
May 21, 2014
__________________
Date
1 Because we affirm the Agency's dismissal of claim 2 for the reason stated herein, we find it unnecessary to address alternative dismissal grounds (i.e. failure to state a claim).
------------------------------------------------------------
------------------------------------------------------------
| [
"Howard v. Department of the Navy, EEOC Request No. 05970852 (February 11, 1999)",
"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",
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173 | https://www.eeoc.gov/sites/default/files/migrated_files/decisions/0120170943.txt | 0120170943.txt | TXT | text/plain | 11,617 | Summary not available - document structure not recognized. | , 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
Director
Office of Federal Operations
Footnotes
Complainant alleged a coworker told her about TB's gun and his threat to use it on Complainant. | [
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174 | https://www.eeoc.gov/sites/default/files/migrated_files/decisions/01A31908.txt | 01A31908.txt | TXT | text/plain | 10,928 | James Henderson v. Department of the Navy 01A31908 July 27, 2004 . James Henderson, Complainant, v. Gordon R. England, Secretary, Department of the Navy, Agency. | July 27, 2004 | Appeal Number: 01A31908
Complaint Allegations:
In his complaint, complainant alleged that he was subjected to discrimination on the bases of race (Black), sex (male), disability, age (over 40), and reprisal for prior EEO activity when: (1) since May 1997, complainant had several leave procedure problems including denial of advanced sick leave and placement in unauthorized leave status; (2) in June 1997, EEO officials allegedly refused to accept his designated representative; and (3) in June 1997, EEO officials allegedly refused to investigate the circumstances associated with the filling of a vacant Supervisory Police Officer position in November 1996. On June 13, 1997, complainant contacted the EEO Office via facsimile transmission claiming to be a victim of ongoing harassment, intimidation and disparate treatment for abuse of leave procedures, placement into an unauthorized absence status, denying advance sick leave, and the processing of his prior complaint. Complainant did not meet with an EEO Counselor when he filed his formal complaint by facsimile transmission on August 12, 1997. The complaint was dismissed by the agency for failure to raise the matters with an EEO Counselor. The Commission reversed the dismissal and remanded the complaint for investigation. Henderson v. Department of the Navy, EEOC Appeal No. 01980082 (July 27, 1998). In Appeal No. 01980082, the Commission found that complainant had prepared a signed informal complaint listing the alleged discriminatory dates, bases and issues. The previous decision found that complainant gave
Case Facts:
Pursuant to 29 C.F.R. § 1614.405, the Commission accepts the complainant's
timely appeal from the agency's final order in the above-entitled
matter. In his complaint, complainant alleged that he was subjected
to discrimination on the bases of race (Black), sex (male), disability,
age (over 40), and reprisal for prior EEO activity when: (1) since May
1997, complainant had several leave procedure problems including denial
of advanced sick leave and placement in unauthorized leave status; (2)
in June 1997, EEO officials allegedly refused to accept his designated
representative; and (3) in June 1997, EEO officials allegedly refused
to investigate the circumstances associated with the filling of a vacant
Supervisory Police Officer position in November 1996.
On June 13, 1997, complainant contacted the EEO Office via facsimile
transmission claiming to be a victim of ongoing harassment, intimidation
and disparate treatment for abuse of leave procedures, placement into
an unauthorized absence status, denying advance sick leave, and the
processing of his prior complaint. Complainant did not meet with an EEO
Counselor when he filed his formal complaint by facsimile transmission
on August 12, 1997.
The complaint was dismissed by the agency for failure to raise the
matters with an EEO Counselor. The Commission reversed the dismissal
and remanded the complaint for investigation. Henderson v. Department
of the Navy, EEOC Appeal No. 01980082 (July 27, 1998). In Appeal
No. 01980082, the Commission found that complainant had prepared a
signed informal complaint listing the alleged discriminatory dates,
bases and issues. The previous decision found that complainant gave
the agency adequate notice of his intent to process an EEO complaint.
Therefore, the complaint was remanded for further processing.
Upon remand, complainant met with the EEO Counselor regarding the
complaint. The EEO Counselor wrote on the Counselor's Report under the
title ISSUES COUNSELED that complainant raised the actions by the EEO
officials stated in claims (2) and (3). In addition, under EXPLANATION
OF ALLEGED DISCRIMINATION, the EEO Counselor stated that complainant
re-iterated his claims outlined in his initial facsimile dated June 17,
1997. The Counselor noted in bold type that complainant raised that
he has been a victim of harassment and an example of such bias motive
was his placement in an authorized absence status and his request for
advance sick leave. The Counselor also noted that complainant and his
representative asked that the concerns be narrowed down to two, claims
(2) and (3). Following counseling, the agency accepted claims (2) and
(3) for investigation. Complainant requested a hearing before an EEOC
Administrative Judge (AJ).
The AJ issued her intent to dismiss the matter on June 11, 2002. The AJ
noted that the complaint should be dismissed for: lack of jurisdiction;
untimely EEO contact; dropping the leave issue after the remand ordered in
Appeal No. 01980082; and/or failure to state a claim. The AJ related the
procedural history of the complaint. The AJ noted that complainant did
not allege in his complaint the issue of the Supervisory Police Officer
position, however, had he raised the non-selection, the AJ indicated
that the claim would have been dismissed for failure to contact the
EEO counselor within forty-five days. See 29 C.F.R. § 1617.107(a)(2).
As for claims (2) and (3), the AJ determined that complainant failed to
state a claim. The AJ noted that complainant met with the EEO Counselor
in pursuit of only claims (2) and (3). The AJ allowed the parties to
respond to the Notice no later than July 8, 2002.
In response to the AJ's Intent to Dismiss, complainant argued
that the agency's investigative record was incomplete and biased.
Therefore, complainant asserted that the AJ should not rely on the
agency's investigation in order to issue a summary judgment decision.
Complainant did not respond to the AJ's characterization of complainant's
meeting with the EEO Counselor. The agency merely agreed with the
AJ's
Legal Analysis:
the Commission accepts the complainant's
timely appeal from the agency's final order in the above-entitled
matter. In his complaint, complainant alleged that he was subjected
to discrimination on the bases of race (Black), sex (male), disability,
age (over 40), and reprisal for prior EEO activity when: (1) since May
1997, complainant had several leave procedure problems including denial
of advanced sick leave and placement in unauthorized leave status; (2)
in June 1997, EEO officials allegedly refused to accept his designated
representative; and (3) in June 1997, EEO officials allegedly refused
to investigate the circumstances associated with the filling of a vacant
Supervisory Police Officer position in November 1996.
On June 13, 1997, complainant contacted the EEO Office via facsimile
transmission claiming to be a victim of ongoing harassment, intimidation
and disparate treatment for abuse of leave procedures, placement into
an unauthorized absence status, denying advance sick leave, and the
processing of his prior complaint. Complainant did not meet with an EEO
Counselor when he filed his formal complaint by facsimile transmission
on August 12, 1997.
The complaint was dismissed by the agency for failure to raise the
matters with an EEO Counselor. The Commission reversed the dismissal
and remanded the complaint for investigation. Henderson v. Department
of the Navy, EEOC Appeal No. 01980082 (July 27, 1998). In Appeal
No. 01980082, the Commission found that complainant had prepared a
signed informal complaint listing the alleged discriminatory dates,
bases and issues. The previous decision found that complainant gave
the agency adequate notice of his intent to process an EEO complaint.
Therefore, the complaint was remanded for further processing.
Upon remand, complainant met with the EEO Counselor regarding the
complaint. The EEO Counselor wrote on the Counselor's Report under the
title ISSUES COUNSELED that complainant raised the actions by the EEO
officials stated in claims (2) and (3). In addition, under EXPLANATION
OF ALLEGED DISCRIMINATION, the EEO Counselor stated that complainant
re-iterated his claims outlined in his initial facsimile dated June 17,
1997. The Counselor noted in bold type that complainant raised that
he has been a victim of harassment and an example of such bias motive
was his placement in an authorized absence status and his request for
advance sick leave. The Counselor also noted that complainant and his
representative asked that the concerns be narrowed down to two, claims
(2) and (3). Following counseling, the agency accepted claims (2) and
(3) for investigation. Complainant requested a hearing before an EEOC
Administrative Judge (AJ).
The AJ issued her intent to dismiss the matter on June 11, 2002. The AJ
noted that the complaint should be dismissed for: lack of jurisdiction;
untimely EEO contact; dropping the leave issue after the remand ordered in
Appeal No. 01980082; and/or failure to state a claim. The AJ related the
procedural history of the complaint. The AJ noted that complainant did
not allege in his complaint the issue of the Supervisory Police Officer
position, however, had he raised the non-selection, the AJ indicated
that the claim would have been dismissed for failure to contact the
EEO counselor within forty-five days. See 29 C.F.R. § 1617.107(a)(2).
As for claims (2) and (3), the AJ determined that complainant failed to
state a claim. The AJ noted that complainant met with the EEO Counselor
in pursuit of only claims (2) and (3). The AJ allowed the parties to
respond to the Notice no later than July 8, 2002.
In response to the AJ's Intent to Dismiss, complainant argued
that the agency's investigative record was incomplete and biased.
Therefore, complainant asserted that the AJ should not rely on the
agency's investigation in order to issue a summary judgment decision.
Complainant did not respond to the AJ's characterization of complainant's
meeting with the EEO Counselor. The agency merely agreed with the
AJ's analysis. The AJ issued her dismissal of claim (1) for lack of
jurisdiction noting that complainant did not pursue the issue following
the remand of Appeal No. 01980082. In addition, the AJ dismissed claims
(2) and (3) for failure to state a claim.
The agency's final order implemented the AJ's dismissal. Complainant
appealed arguing that the agency's investigation was untimely and
incomplete. Through his representative, he contends that it was
inappropriate to dismiss the matter based on the agency's "bogus
record." Further, complainant asserts that he never withdrew claim
(1). Specifically, complainant points to the EEO Counselor report
following the Commission remand indicating his pursuit of claim (1).
Complainant also notes that his formal complaint filed after meeting
with the EEO Counselor cites his initial complaint for the statement of
a claim of discrimination which referenced the leave issues raised in
claim (1). In response to the appeal, the agency focuses on the issue
of the investigation and is silent as to claim (1).
ANALYSIS AND FINDINGS
Claims (2) and (3)
Under 29 C.F.R. § 1614.107(a)(8), an agency shall dismiss an entire
complaint that alleges dissatisfaction with the processing of a previously
filed complaint. In the present case, the Commission finds that,
in claims (2) and (3), complainant clearly raises claims pertaining
to the processing of his prior EEO complaint. Therefore, under the
Commission's regulations, the agency is required to dismiss these claims
of improper processing. When claims of improper processing are raised,
the complainant should be referred to the agency official responsible for
the quality of complaints processing, and the agency should earnestly
attempt to resolve any dissatisfaction with the complaints process
as early and expeditiously as possible. EEO MD-110, 5-25 (November
9, 1999). Complainant is therefore advised to contact an official in
the agency's EEO office, if she believes that any complaint has been
improperly processed. | James Henderson v. Department of the Navy
01A31908
July 27, 2004
.
James Henderson,
Complainant,
v.
Gordon R. England,
Secretary,
Department of the Navy,
Agency.
Appeal No. 01A31908
Agency No. DON-97-60201-005
DECISION
Pursuant to 29 C.F.R. § 1614.405, the Commission accepts the complainant's
timely appeal from the agency's final order in the above-entitled
matter. In his complaint, complainant alleged that he was subjected
to discrimination on the bases of race (Black), sex (male), disability,
age (over 40), and reprisal for prior EEO activity when: (1) since May
1997, complainant had several leave procedure problems including denial
of advanced sick leave and placement in unauthorized leave status; (2)
in June 1997, EEO officials allegedly refused to accept his designated
representative; and (3) in June 1997, EEO officials allegedly refused
to investigate the circumstances associated with the filling of a vacant
Supervisory Police Officer position in November 1996.
On June 13, 1997, complainant contacted the EEO Office via facsimile
transmission claiming to be a victim of ongoing harassment, intimidation
and disparate treatment for abuse of leave procedures, placement into
an unauthorized absence status, denying advance sick leave, and the
processing of his prior complaint. Complainant did not meet with an EEO
Counselor when he filed his formal complaint by facsimile transmission
on August 12, 1997.
The complaint was dismissed by the agency for failure to raise the
matters with an EEO Counselor. The Commission reversed the dismissal
and remanded the complaint for investigation. Henderson v. Department
of the Navy, EEOC Appeal No. 01980082 (July 27, 1998). In Appeal
No. 01980082, the Commission found that complainant had prepared a
signed informal complaint listing the alleged discriminatory dates,
bases and issues. The previous decision found that complainant gave
the agency adequate notice of his intent to process an EEO complaint.
Therefore, the complaint was remanded for further processing.
Upon remand, complainant met with the EEO Counselor regarding the
complaint. The EEO Counselor wrote on the Counselor's Report under the
title ISSUES COUNSELED that complainant raised the actions by the EEO
officials stated in claims (2) and (3). In addition, under EXPLANATION
OF ALLEGED DISCRIMINATION, the EEO Counselor stated that complainant
re-iterated his claims outlined in his initial facsimile dated June 17,
1997. The Counselor noted in bold type that complainant raised that
he has been a victim of harassment and an example of such bias motive
was his placement in an authorized absence status and his request for
advance sick leave. The Counselor also noted that complainant and his
representative asked that the concerns be narrowed down to two, claims
(2) and (3). Following counseling, the agency accepted claims (2) and
(3) for investigation. Complainant requested a hearing before an EEOC
Administrative Judge (AJ).
The AJ issued her intent to dismiss the matter on June 11, 2002. The AJ
noted that the complaint should be dismissed for: lack of jurisdiction;
untimely EEO contact; dropping the leave issue after the remand ordered in
Appeal No. 01980082; and/or failure to state a claim. The AJ related the
procedural history of the complaint. The AJ noted that complainant did
not allege in his complaint the issue of the Supervisory Police Officer
position, however, had he raised the non-selection, the AJ indicated
that the claim would have been dismissed for failure to contact the
EEO counselor within forty-five days. See 29 C.F.R. § 1617.107(a)(2).
As for claims (2) and (3), the AJ determined that complainant failed to
state a claim. The AJ noted that complainant met with the EEO Counselor
in pursuit of only claims (2) and (3). The AJ allowed the parties to
respond to the Notice no later than July 8, 2002.
In response to the AJ's Intent to Dismiss, complainant argued
that the agency's investigative record was incomplete and biased.
Therefore, complainant asserted that the AJ should not rely on the
agency's investigation in order to issue a summary judgment decision.
Complainant did not respond to the AJ's characterization of complainant's
meeting with the EEO Counselor. The agency merely agreed with the
AJ's analysis. The AJ issued her dismissal of claim (1) for lack of
jurisdiction noting that complainant did not pursue the issue following
the remand of Appeal No. 01980082. In addition, the AJ dismissed claims
(2) and (3) for failure to state a claim.
The agency's final order implemented the AJ's dismissal. Complainant
appealed arguing that the agency's investigation was untimely and
incomplete. Through his representative, he contends that it was
inappropriate to dismiss the matter based on the agency's "bogus
record." Further, complainant asserts that he never withdrew claim
(1). Specifically, complainant points to the EEO Counselor report
following the Commission remand indicating his pursuit of claim (1).
Complainant also notes that his formal complaint filed after meeting
with the EEO Counselor cites his initial complaint for the statement of
a claim of discrimination which referenced the leave issues raised in
claim (1). In response to the appeal, the agency focuses on the issue
of the investigation and is silent as to claim (1).
ANALYSIS AND FINDINGS
Claims (2) and (3)
Under 29 C.F.R. § 1614.107(a)(8), an agency shall dismiss an entire
complaint that alleges dissatisfaction with the processing of a previously
filed complaint. In the present case, the Commission finds that,
in claims (2) and (3), complainant clearly raises claims pertaining
to the processing of his prior EEO complaint. Therefore, under the
Commission's regulations, the agency is required to dismiss these claims
of improper processing. When claims of improper processing are raised,
the complainant should be referred to the agency official responsible for
the quality of complaints processing, and the agency should earnestly
attempt to resolve any dissatisfaction with the complaints process
as early and expeditiously as possible. EEO MD-110, 5-25 (November
9, 1999). Complainant is therefore advised to contact an official in
the agency's EEO office, if she believes that any complaint has been
improperly processed. Accordingly, we affirm the AJ's dismissal of claims
(2) and (3).
Claim 1
As to claim (1), we find that the dismissal was appropriate. We note that
complainant clearly indicated to the EEO Counselor that the only issues
he and representative wished to pursue were those listed as claims (2)
and (3). Based on complainant's withdrawal of claim (1), the agency did
not include claim (1) in its acceptance notice. Further, complainant
did not challenge the AJ's Notice as to the withdrawal of claim (1) nor
the characterization of his meeting with the EEO Counselor. It is only
on appeal that complainant asserts that he did not withdraw claim (1).
Therefore, upon review, we affirm the AJ's dismissal of claim (1).
CONCLUSION
Accordingly, upon review of the record and statements submitted on appeal,
we affirm the dismissal of the 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
July 27, 2004
__________________
Date
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175 | https://www.eeoc.gov/sites/default/files/migrated_files/decisions/01A31450_r.txt | 01A31450_r.txt | TXT | text/plain | 10,420 | Sylvester Traylor v. Department of the Navy 01A31450 September 8, 2003 . Sylvester Traylor, Complainant, v. Hansford T. Johnson, Acting Secretary, Department of the Navy, Agency. | September 8, 2003 | Appeal Number: 01A31450
Case Facts:
Complainant filed a formal complaint in Agency Case No. 02-6115-001
alleging that he was subjected to discrimination based on reprisal for
prior EEO activity when:
On January 24, 2001, he was not selected for the position of Cashier;
On February 15, 2001, he was terminated from the NEX Security Department;
In February 2001, a Security Manager issued a defamatory and untrue
memo to supervisors and managers about him;
In March 2001, a Security Manager contacted complainant's supervisor at
the Morale, Welfare and Recreation Department to discredit and disgrace
his name;
In March 2001, his supervisor told a former coworker of his that he
was not allowed to talk to complainant;
In March 2001, the Security Manager contacted the Naval Submarine
Base Security Department to have complainant's car decals removed and
complainant's identification card taken away so complainant could not
re-enter the Naval Submarine Base, even though he knew complainant was
employed at the Morale, Welfare, and Recreation Department of the Naval
Submarine Base; and
On March 14, 2001, the local town police were called to the Naval
Housing Facility after a person living there thought complainant was
following her.
The agency issued a decision dated February 8, 2002, dismissing claims (a)
through (f) for untimely EEO Counselor contact. Additionally, the agency
dismissed claim (g) for failure to state a claim. Complainant appealed
the agency's decision and argued that he previously raised the alleged
matters, via a letter dated March 16, 2001, which he presented to an
identified EEO Counselor.
In our previous decision, in Sylvester Traylor v. Department of Navy,
EEOC Appeal No. 01A22217 (October 31, 2002), the Commission affirmed
the dismissal of issues (a) and (g). However, the Commission found
that there was no evidence in the record to show whether complainant
submitted his March 16, 2001 letter in order to initiate the EEO complaint
processing with regard to the matters raised therein. Therefore,
the Commission remanded the matter and ordered the agency to provide
in the record a statement from the identified EEO Counselor, indicating
whether complainant gave the letter to the same EEO Counselor in order to
initiate the EEO complaint process concerning the matters raised therein.
The Commission further ordered the agency to then redetermine whether
claims (b) - (f) were timely raised with an EEO Counselor.
The agency reissued a notice of dismissal of Agency Case No. 02-61115-001,
on December 12, 2002. The agency referenced the declaration of the
counselor in its final decision. The agency decided that issues
(b) - (f), occurring from January through March 2001, were untimely.
The agency noted that complainant did not file on these issues in his
formal complaint for Agency Case No. 01-6115-001 filed on February 16,
2001 nor did he seek counseling for these issues. The agency noted
that on February 27, 2001, complainant requested a right to sue letter
in order to file a claim in U.S. District Court which the Deputy EEO
Officer responded to on March 7, 2001, informing complainant of the
forty-five (45) day requirement to contact a counselor to bring any
new issues into the process. The agency stated that on March 16, 2001,
complainant visited the EEO Office and informed the EEO Counselor that
he did not trust the EEO Office and provided the office with a copy
of a claim he filed in U.S. District Court. The agency claimed that
the EEO Counselor signed and dated the notice complainant gave him
and reminded him of the forty-five (45) day time limit to initiate a
new claim. The agency concluded that since complainant did not file
an informal complaint on the described issues until September 9, 2001,
his complainant is dismissed for untimely counselor contact.
The record contains a declaration of the identified EEO Counselor in
which he states that complainant came to his office to drop off a copy
of the March 16, 2001 letter addressed to the Staff Judge Advocate of
NAVSUBASE New London. The counselor states that he asked complainant
if he wanted to be interviewed to complete an intake sheet to start the
informal complaint process for a new complaint. The counselor states that
complainant told him he was not interested in starting another complaint.
The counselor explains that complainant provided the EEO Office with
a copy of a complaint dated March 2, 2001, that he indicated he would
file in U.S. District Court because he was voicing his displeasure with
the EEO process. The Counselor states that he explained the need to
go through the informal process and that he had forty-five (45) days
to commence the process. The counselor states that he annotated the
document as received from complainant and dated it in order to indicate
that he advised complainant of the time limitation for processing.
Complainant filed the present appeal on January 3, 2003, challenging
the agency's December 12, 2002 dismissal of his complaint for untimely
counselor contact.<1> In his appeal, complainant refers to the signature
of the EEO Counselor acknowledging receipt of his March 16, 2001 letter.
Complainant claims that the EEO Counselor and the Deputy EEO Officer,
told him that it was not necessary for him to open a new case against the
same respondent, but they will incorporate the complainant's March 16,
2001 letter, into his previous complaint, Agency Case No. 01-61115-001.
Complainant further states that the EEO Counselor requested that he cc
the March 16, 2001 letter to Agency Case No. 01-61115-001.
Legal Analysis:
the Commission affirmed
the dismissal of issues (a) and (g). However, the Commission found
that there was no evidence in the record to show whether complainant
submitted his March 16, 2001 letter in order to initiate the EEO complaint
processing with regard to the matters raised therein. Therefore,
the Commission remanded the matter and ordered the agency to provide
in the record a statement from the identified EEO Counselor, indicating
whether complainant gave the letter to the same EEO Counselor in order to
initiate the EEO complaint process concerning the matters raised therein.
The Commission further ordered the agency to then redetermine whether
claims (b) - (f) were timely raised with an EEO Counselor.
The agency reissued a notice of dismissal of Agency Case No. 02-61115-001,
on December 12, 2002. The agency referenced the declaration of the
counselor in its final decision. The agency decided that issues
(b) - (f), occurring from January through March 2001, were untimely.
The agency noted that complainant did not file on these issues in his
formal complaint for Agency Case No. 01-6115-001 filed on February 16,
2001 nor did he seek counseling for these issues. The agency noted
that on February 27, 2001, complainant requested a right to sue letter
in order to file a claim in U.S. District Court which the Deputy EEO
Officer responded to on March 7, 2001, informing complainant of the
forty-five (45) day requirement to contact a counselor to bring any
new issues into the process. The agency stated that on March 16, 2001,
complainant visited the EEO Office and informed the EEO Counselor that
he did not trust the EEO Office and provided the office with a copy
of a claim he filed in U.S. District Court. The agency claimed that
the EEO Counselor signed and dated the notice complainant gave him
and reminded him of the forty-five (45) day time limit to initiate a
new claim. The agency concluded that since complainant did not file
an informal complaint on the described issues until September 9, 2001,
his complainant is dismissed for untimely counselor contact.
The record contains a declaration of the identified EEO Counselor in
which he states that complainant came to his office to drop off a copy
of the March 16, 2001 letter addressed to the Staff Judge Advocate of
NAVSUBASE New London. The counselor states that he asked complainant
if he wanted to be interviewed to complete an intake sheet to start the
informal complaint process for a new complaint. The counselor states that
complainant told him he was not interested in starting another complaint.
The counselor explains that complainant provided the EEO Office with
a copy of a complaint dated March 2, 2001, that he indicated he would
file in U.S. District Court because he was voicing his displeasure with
the EEO process. The Counselor states that he explained the need to
go through the informal process and that he had forty-five (45) days
to commence the process. The counselor states that he annotated the
document as received from complainant and dated it in order to indicate
that he advised complainant of the time limitation for processing.
Complainant filed the present appeal on January 3, 2003, challenging
the agency's December 12, 2002 dismissal of his complaint for untimely
counselor contact.<1> In his appeal, complainant refers to the signature
of the EEO Counselor acknowledging receipt of his March 16, 2001 letter.
Complainant claims that the EEO Counselor and the Deputy EEO Officer,
told him that it was not necessary for him to open a new case against the
same respondent, but they will incorporate the complainant's March 16,
2001 letter, into his previous complaint, Agency Case No. 01-61115-001.
Complainant further states that the EEO Counselor requested that he cc
the March 16, 2001 letter to Agency Case No. 01-61115-001.
Upon review of all submissions on appeal, the Commission finds that the
agency properly dismissed issues (b) - (f) of complainant's complaint
for untimely EEO Counselor contact. We find that complainant has
not presented evidence to show that he submitted his March 16, 2001
letter in order to initiate the EEO complaint processing with regard
to the matters raised therein. Since the incidents alleged in issues
(b) - (f) occurred between February 2001 through March 2001, we find
that complainant's September 9, 2001 counselor contact was beyond the
applicable limitations period.
Final Decision:
Accordingly, the agency's final decision dismissing complainant's complaint is AFFIRMED. | Sylvester Traylor v. Department of the Navy
01A31450
September 8, 2003
.
Sylvester Traylor,
Complainant,
v.
Hansford T. Johnson,
Acting Secretary,
Department of the Navy,
Agency.
Appeal No. 01A31450
Agency No. 02-61115-001
DECISION
Complainant filed a formal complaint in Agency Case No. 02-6115-001
alleging that he was subjected to discrimination based on reprisal for
prior EEO activity when:
On January 24, 2001, he was not selected for the position of Cashier;
On February 15, 2001, he was terminated from the NEX Security Department;
In February 2001, a Security Manager issued a defamatory and untrue
memo to supervisors and managers about him;
In March 2001, a Security Manager contacted complainant's supervisor at
the Morale, Welfare and Recreation Department to discredit and disgrace
his name;
In March 2001, his supervisor told a former coworker of his that he
was not allowed to talk to complainant;
In March 2001, the Security Manager contacted the Naval Submarine
Base Security Department to have complainant's car decals removed and
complainant's identification card taken away so complainant could not
re-enter the Naval Submarine Base, even though he knew complainant was
employed at the Morale, Welfare, and Recreation Department of the Naval
Submarine Base; and
On March 14, 2001, the local town police were called to the Naval
Housing Facility after a person living there thought complainant was
following her.
The agency issued a decision dated February 8, 2002, dismissing claims (a)
through (f) for untimely EEO Counselor contact. Additionally, the agency
dismissed claim (g) for failure to state a claim. Complainant appealed
the agency's decision and argued that he previously raised the alleged
matters, via a letter dated March 16, 2001, which he presented to an
identified EEO Counselor.
In our previous decision, in Sylvester Traylor v. Department of Navy,
EEOC Appeal No. 01A22217 (October 31, 2002), the Commission affirmed
the dismissal of issues (a) and (g). However, the Commission found
that there was no evidence in the record to show whether complainant
submitted his March 16, 2001 letter in order to initiate the EEO complaint
processing with regard to the matters raised therein. Therefore,
the Commission remanded the matter and ordered the agency to provide
in the record a statement from the identified EEO Counselor, indicating
whether complainant gave the letter to the same EEO Counselor in order to
initiate the EEO complaint process concerning the matters raised therein.
The Commission further ordered the agency to then redetermine whether
claims (b) - (f) were timely raised with an EEO Counselor.
The agency reissued a notice of dismissal of Agency Case No. 02-61115-001,
on December 12, 2002. The agency referenced the declaration of the
counselor in its final decision. The agency decided that issues
(b) - (f), occurring from January through March 2001, were untimely.
The agency noted that complainant did not file on these issues in his
formal complaint for Agency Case No. 01-6115-001 filed on February 16,
2001 nor did he seek counseling for these issues. The agency noted
that on February 27, 2001, complainant requested a right to sue letter
in order to file a claim in U.S. District Court which the Deputy EEO
Officer responded to on March 7, 2001, informing complainant of the
forty-five (45) day requirement to contact a counselor to bring any
new issues into the process. The agency stated that on March 16, 2001,
complainant visited the EEO Office and informed the EEO Counselor that
he did not trust the EEO Office and provided the office with a copy
of a claim he filed in U.S. District Court. The agency claimed that
the EEO Counselor signed and dated the notice complainant gave him
and reminded him of the forty-five (45) day time limit to initiate a
new claim. The agency concluded that since complainant did not file
an informal complaint on the described issues until September 9, 2001,
his complainant is dismissed for untimely counselor contact.
The record contains a declaration of the identified EEO Counselor in
which he states that complainant came to his office to drop off a copy
of the March 16, 2001 letter addressed to the Staff Judge Advocate of
NAVSUBASE New London. The counselor states that he asked complainant
if he wanted to be interviewed to complete an intake sheet to start the
informal complaint process for a new complaint. The counselor states that
complainant told him he was not interested in starting another complaint.
The counselor explains that complainant provided the EEO Office with
a copy of a complaint dated March 2, 2001, that he indicated he would
file in U.S. District Court because he was voicing his displeasure with
the EEO process. The Counselor states that he explained the need to
go through the informal process and that he had forty-five (45) days
to commence the process. The counselor states that he annotated the
document as received from complainant and dated it in order to indicate
that he advised complainant of the time limitation for processing.
Complainant filed the present appeal on January 3, 2003, challenging
the agency's December 12, 2002 dismissal of his complaint for untimely
counselor contact.<1> In his appeal, complainant refers to the signature
of the EEO Counselor acknowledging receipt of his March 16, 2001 letter.
Complainant claims that the EEO Counselor and the Deputy EEO Officer,
told him that it was not necessary for him to open a new case against the
same respondent, but they will incorporate the complainant's March 16,
2001 letter, into his previous complaint, Agency Case No. 01-61115-001.
Complainant further states that the EEO Counselor requested that he cc
the March 16, 2001 letter to Agency Case No. 01-61115-001.
Upon review of all submissions on appeal, the Commission finds that the
agency properly dismissed issues (b) - (f) of complainant's complaint
for untimely EEO Counselor contact. We find that complainant has
not presented evidence to show that he submitted his March 16, 2001
letter in order to initiate the EEO complaint processing with regard
to the matters raised therein. Since the incidents alleged in issues
(b) - (f) occurred between February 2001 through March 2001, we find
that complainant's September 9, 2001 counselor contact was beyond the
applicable limitations period.
Accordingly, the agency's final decision dismissing complainant's
complaint is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
The Commission may, in its discretion, reconsider the decision in this
case if the complainant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. The appellate decision involved a clearly erroneous interpretation
of material fact or law; or
2. The appellate decision will have a substantial impact on the policies,
practices, or operations of the agency.
Requests to reconsider, with supporting statement or brief, must be filed
with the Office of Federal Operations (OFO) within thirty (30) calendar
days of receipt of this decision or within twenty (20) calendar days of
receipt of another party's timely request for reconsideration. See 29
C.F.R. § 1614.405; Equal Employment Opportunity Management Directive for
29 C.F.R. Part 1614 (EEO MD-110), 9-18 (November 9, 1999). All requests
and arguments must be submitted to the Director, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. In the absence of a legible postmark, the
request to reconsider shall be deemed timely filed if it is received by
mail within five days of the expiration of the applicable filing period.
See 29 C.F.R. § 1614.604. The request or opposition must also include
proof of service on the other party.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely, unless extenuating circumstances
prevented the timely filing of the request. Any supporting documentation
must be submitted with your request for reconsideration. The Commission
will consider requests for reconsideration filed after the deadline only
in very limited circumstances. See 29 C.F.R. § 1614.604(c).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S0900)
You have the right to file a civil action in an appropriate United States
District Court within ninety (90) calendar days from the date that you
receive this decision. If you file a civil action, you must name as
the defendant in the complaint the person who is the official agency head
or department head, identifying that person by his or her full name and
official title. Failure to do so may result in the dismissal of your
case in court. "Agency" or "department" means the national organization,
and not the local office, facility or department in which you work. If you
file a request to reconsider and also file a civil action, filing a civil
action will terminate the administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z1199)
If you decide to file a civil action, and if you do not have or cannot
afford the services of an attorney, you may request that the Court appoint
an attorney to represent you and that the Court permit you to file the
action without payment of fees, costs, or other security. See Title VII
of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq.;
the Rehabilitation Act of 1973,as amended, 29 U.S.C. §§ 791, 794(c).
The grant or denial of the request is within the sole discretion of
the Court. Filing a request for an attorney does not extend your time
in which to file a civil action. Both the request and the civil action
must be filed within the time limits as stated in the paragraph above
("Right to File A Civil Action").
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
September 8, 2003
__________________
Date
1Complainant also appeals the agency's
decision in Agency Case No. 01-61115-001, which is being addressed by
the Commission in a separate decision under EEOC Appeal No. 01A33880.
| [
"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"
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0.066788... |
176 | https://www.eeoc.gov/sites/default/files/migrated_files/decisions/01986144.TXT | 01986144.TXT | TXT | text/plain | 11,434 | April 8, 1999 | Appeal Number: 01986144
Case Facts:
Appellant filed the instant appeal from the agency's June 15, 1998
decision dismissing appellant's complaint alleging termination as a
temporary Forestry Technician (and denial of rehire eligibility rights)
on October 3, 1997 for failure to timely contact an EEO Counselor.
Legal Analysis:
EEOC Regulation 29 C.F.R. §1614.105(a)(1) provides that an aggrieved
person must contact an EEO Counselor within 45 days of the matter alleged
to be discriminatory. The 45 day time limit shall be extended when
the individual shows that she was not notified of the time limits
and was not otherwise aware of them or that she did not know and
reasonably should not have known that the discriminatory matter occurred.
29 C.F.R. §1614.105(a)(2). The agency found, and the EEO Counselor Report
shows, that appellant initially requested EEO counseling on January 26,
1998.
Appellant argues that she was unaware of the time limits for contacting
an EEO Counselor until a conversation she had on January 26, 1998 with
the California Chapter President of the Coalition of Minority Employees.
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)). 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) (citation omitted). 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 found in the decision that appellant
had constructive notice of the time limit for contacting an EEO Counselor
because: (1) the agency issues an EEO policy statement to all employees;
(2) information with the time limit is displayed on all official bulletin
boards; (3) EEOC counselor posters are displayed at every work site;
and (4) appellant received EEO related training on June 22, 1995.
Appellant specifically disputes the agency's contentions regarding
constructive notice.
The agency has not placed any evidence in the record to support its
findings of constructive notice. There is no copy of the EEO policy
statement in the record and there is no evidence in the record showing the
policy statement was provided to appellant. The agency has not supplied a
copy of any EEO poster(s) or an affidavit describing the location of the
poster(s) during the relevant time period. The agency has not supplied
a copy of a list of attendees for the June 22, 1995 training or evidence
showing that the time limit for contacting an EEO Counselor was discussed
in the training. 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 she contacted an EEO Counselor.
The agency's decision dismissing the complaint is VACATED and we REMAND
the complaint to the agency for further processing in accordance with
this decision and applicable regulations.
ORDER
The agency shall investigate the issue of whether appellant had actual
or constructive knowledge of the time limit for contacting an EEO
Counselor more than 45 days before she contacted an EEO Counselor.
The agency shall supplement the record with copies of the EEO posters
(or affidavits describing the posters if the posters are unavailable)
and any other evidence showing that appellant was informed, or should
have known, of the time limits for contacting an EEO Counselor.
The agency shall redetermine whether appellant timely contacted an EEO
Counselor. Within 60 days of the date this decision becomes final the
agency shall either issue a letter to appellant accepting the complaint
for investigation or issue a new decision dismissing the complaint.
A copy of the letter accepting the complaint or new decision dismissing
the complaint must be sent to the Compliance Officer as referenced
herein.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0595)
Compliance with the Commission's corrective action is mandatory.
The agency shall submit its compliance report within thirty (30)
calendar days of the completion of all ordered corrective action. The
report shall be submitted to the Compliance Officer, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. The agency's report must contain supporting
documentation, and the agency must send a copy of all submissions to
the appellant. If the agency does not comply with the Commission's
order, the appellant may petition the Commission for enforcement of
the order. 29 C.F.R. §1614.503 (a). The appellant also has the right
to file a civil action to enforce compliance with the Commission's
order prior to or following an administrative petition for enforcement.
See 29 C.F.R. §§ 1614.408, 1614.409, and 1614.503 (g). Alternatively,
the appellant has the right to file a civil action on the underlying
complaint in accordance with the paragraph below entitled "Right to
File A Civil Action." 29 C.F.R. §§ 1614.408 and 1614.409. A civil
action for enforcement or a civil action on the underlying complaint is
subject to the deadline stated in 42 U.S.C. §2000e-16© (Supp. V 1993).
If the appellant files a civil action, the administrative processing of
the complaint, including any petition for enforcement, will be terminated.
See 29 C.F.R. §1614.410. | Gloria J. Svoboda v. Department of Agriculture
01986144
April 8, 1999
Gloria J. Svoboda, )
Appellant, )
)
v. ) Appeal No. 01986144
) Agency No. 980435
Daniel R. Glickman, )
Secretary, )
Department of Agriculture, )
Agency. )
_________________________________)
DECISION
Appellant filed the instant appeal from the agency's June 15, 1998
decision dismissing appellant's complaint alleging termination as a
temporary Forestry Technician (and denial of rehire eligibility rights)
on October 3, 1997 for failure to timely contact an EEO Counselor.
EEOC Regulation 29 C.F.R. §1614.105(a)(1) provides that an aggrieved
person must contact an EEO Counselor within 45 days of the matter alleged
to be discriminatory. The 45 day time limit shall be extended when
the individual shows that she was not notified of the time limits
and was not otherwise aware of them or that she did not know and
reasonably should not have known that the discriminatory matter occurred.
29 C.F.R. §1614.105(a)(2). The agency found, and the EEO Counselor Report
shows, that appellant initially requested EEO counseling on January 26,
1998.
Appellant argues that she was unaware of the time limits for contacting
an EEO Counselor until a conversation she had on January 26, 1998 with
the California Chapter President of the Coalition of Minority Employees.
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)). 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) (citation omitted). 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 found in the decision that appellant
had constructive notice of the time limit for contacting an EEO Counselor
because: (1) the agency issues an EEO policy statement to all employees;
(2) information with the time limit is displayed on all official bulletin
boards; (3) EEOC counselor posters are displayed at every work site;
and (4) appellant received EEO related training on June 22, 1995.
Appellant specifically disputes the agency's contentions regarding
constructive notice.
The agency has not placed any evidence in the record to support its
findings of constructive notice. There is no copy of the EEO policy
statement in the record and there is no evidence in the record showing the
policy statement was provided to appellant. The agency has not supplied a
copy of any EEO poster(s) or an affidavit describing the location of the
poster(s) during the relevant time period. The agency has not supplied
a copy of a list of attendees for the June 22, 1995 training or evidence
showing that the time limit for contacting an EEO Counselor was discussed
in the training. 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 she contacted an EEO Counselor.
The agency's decision dismissing the complaint is VACATED and we REMAND
the complaint to the agency for further processing in accordance with
this decision and applicable regulations.
ORDER
The agency shall investigate the issue of whether appellant had actual
or constructive knowledge of the time limit for contacting an EEO
Counselor more than 45 days before she contacted an EEO Counselor.
The agency shall supplement the record with copies of the EEO posters
(or affidavits describing the posters if the posters are unavailable)
and any other evidence showing that appellant was informed, or should
have known, of the time limits for contacting an EEO Counselor.
The agency shall redetermine whether appellant timely contacted an EEO
Counselor. Within 60 days of the date this decision becomes final the
agency shall either issue a letter to appellant accepting the complaint
for investigation or issue a new decision dismissing the complaint.
A copy of the letter accepting the complaint or new decision dismissing
the complaint must be sent to the Compliance Officer as referenced
herein.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0595)
Compliance with the Commission's corrective action is mandatory.
The agency shall submit its compliance report within thirty (30)
calendar days of the completion of all ordered corrective action. The
report shall be submitted to the Compliance Officer, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. The agency's report must contain supporting
documentation, and the agency must send a copy of all submissions to
the appellant. If the agency does not comply with the Commission's
order, the appellant may petition the Commission for enforcement of
the order. 29 C.F.R. §1614.503 (a). The appellant also has the right
to file a civil action to enforce compliance with the Commission's
order prior to or following an administrative petition for enforcement.
See 29 C.F.R. §§ 1614.408, 1614.409, and 1614.503 (g). Alternatively,
the appellant has the right to file a civil action on the underlying
complaint in accordance with the paragraph below entitled "Right to
File A Civil Action." 29 C.F.R. §§ 1614.408 and 1614.409. A civil
action for enforcement or a civil action on the underlying complaint is
subject to the deadline stated in 42 U.S.C. §2000e-16© (Supp. V 1993).
If the appellant files a civil action, the administrative processing of
the complaint, including any petition for enforcement, will be terminated.
See 29 C.F.R. §1614.410.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. §1614.407. All requests and arguments
must bear proof of postmark and be submitted to the Director, Office of
Federal Operations, Equal Employment Opportunity Commission, P.O. Box
19848, Washington, D.C. 20036. In the absence of a legible postmark,
the request to reconsider shall be deemed filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and any supporting documentation must be submitted with your
request for reconsideration. The Commission will consider requests
for reconsideration filed after the deadline only in very limited
circumstances. See 29 C.F.R. §1614.604(c).
RIGHT TO FILE A CIVIL ACTION (R0993)
This is a decision requiring the agency to continue its administrative
processing of your complaint. However, if you wish to file a civil
action, you have the right to file such action in an appropriate United
States District Court. It is the position of the Commission that you
have the right to file a civil action in an appropriate United States
District Court WITHIN NINETY (90) CALENDAR DAYS from the date that you
receive this decision. You should be aware, however, that courts in some
jurisdictions have interpreted the Civil Rights Act of 1991 in a manner
suggesting that a civil action must be filed WITHIN THIRTY (30) CALENDAR
DAYS from the date that you receive this decision. To ensure that your
civil action is considered timely, you are advised to file it WITHIN
THIRTY (30) CALENDAR DAYS from the date that you receive this decision
or to consult an attorney concerning the applicable time period in the
jurisdiction in which your action would be filed. In the alternative,
you may file a civil action AFTER ONE HUNDRED AND EIGHTY (180) CALENDAR
DAYS of the date you filed your complaint with the agency, or filed your
appeal with the Commission. If you file a civil action, YOU MUST NAME
AS THE DEFENDANT IN THE COMPLAINT THE PERSON WHO IS THE OFFICIAL AGENCY
HEAD OR DEPARTMENT HEAD, IDENTIFYING THAT PERSON BY HIS OR HER FULL NAME
AND OFFICIAL TITLE. Failure to do so may result in the dismissal of your
case in court. "Agency" or "department" means the national organization,
and not the local office, facility or department in which you work.
Filing a civil action will terminate the administrative processing of
your complaint.
RIGHT TO REQUEST COUNSEL (Z1092)
If you decide to file a civil action, and if you do not have or cannot
afford the services of an attorney, you may request that the Court appoint
an attorney to represent you and that the Court permit you to file the
action without payment of fees, costs, or other security. See Title VII
of the Civil Rights Act of 1964, as amended, 42 U.S.C. §2000e et seq.;
the Rehabilitation Act of 1973, as amended, 29 U.S.C. §§791, 794(c).
The grant or denial of the request is within the sole discretion of
the Court. Filing a request for an attorney does not extend your time
in which to file a civil action. Both the request and the civil action
must be filed within the time limits as stated in the paragraph above
("Right to File A Civil Action").
FOR THE COMMISSION:
April 8, 1999
DATE Ronnie Blumenthal, Director
Office of Federal Operations | [
"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"
] | [
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0.0884818285703659,
-0.0519556924700737,
-0.08208782970905304,
0.0142980720... | |
177 | https://www.eeoc.gov/sites/default/files/migrated_files/decisions/01984008.txt | 01984008.txt | TXT | text/plain | 11,868 | Michael Martinez v. Department of Veterans Affairs 01984008 July 12, 2000 . Michael Martinez, Complainant, v. Togo D. West, Jr., Secretary, Department of Veterans Affairs, Agency. | July 12, 2000 | Appeal Number: 01984008
Case Facts:
We find that the agency's March 31, 1998 decision properly dismissed one
of three claims in complainant's complaint for untimely EEO counselor
contact and two other claims raised in a negotiated grievance.<1>
The record shows that by letter dated November 22, 1995, the agency's
Chief of Staff reduced a proposed 5-day suspension for complainant to
a one-day suspension.
On January 30, 1996, complainant certified that he had received a copy
of a list of EEO Counselors, with tours of duty and phone extension
numbers. Complainant also acknowledged that he had been informed that
an aggrieved person had to contact and EEO Counselor within 45 days of
the discriminatory event.
By letter dated February 27, 1996, the American Federation of Government
Employees (the union) requested that the one-day suspension issued
against complainant be rescinded.<2> Because complainant refused to sign
a proposed agreement regarding the reprimand and one-day suspension,
by letter dated March 28, 1996, the union requested an answer to the
"third step grievance". On March 28, 1996, the agency's Associate Director
denied the grievance.
The record reflects that on March 29, 1996, complainant was not selected
for a position as Audiovisual Production Specialist, GS-9.
By letter dated November 18, 1996, the agency's Associate Director advised
the union that "non-selection is not a grievable issue". On November 22,
1996, complainant once again acknowledged that he had been provided with
a list of EEO counselors. Complainant also acknowledged that he had been
informed about the 45-day time limit for EEO counselor contact.
The EEO Counselor's Report shows that complainant sought EEO counseling
on February 18, 1997, alleging that he had been discriminated against
on the basis of race (Hispanic) when: (1) on March 29, 1996, he was not
selected for the position of Audiovisual Technician; and, (2) on October
23, 1995, he was reprimanded.
Complainant subsequently filed a formal complaint of discrimination
that is the subject of the instant appeal, alleging that he had been
discriminated against on the basis of race when:
(1) on March 29, 1996, he was not selected for the position of Audiovisual
Technician;
(2) on October 23, 1995, he was reprimanded;<3> and
(3) on October 6, 1995, he was harassed.<4>
By letter dated March 20, 1998, complainant's attorney requested a
copy of the alleged grievance filed by complainant concerning his
non-selection for the position of Audiovisual Technician. By letter
dated March 31, 1998, the agency's Personnel Management Specialist
informed complainant's attorney that "nonselection is not a grievable
issue. Therefore, a grievance was not filed regarding [complainant's]
non-selection for the position of Audiovisual Technician".
The agency issued a final decision dismissing the complaint on the grounds
of untimely EEO Counselor contact. The agency found that complainant's
initial EEO Counselor contact had taken place "approximately fourteen
months after his one-day suspension and more than ten months after his
failure to be promoted to the above cited position". The agency also
found that complainant had already raised the issue concerning the
proposed five-day suspension, later reduced to a one-day suspension,
in a grievance.
On appeal, complainant contends that the agency has been unable to provide
evidence to support its contention that a grievance was filed concerning
the issues raised in his formal complaint. Complainant further contends
that upon learning of his non-selection, he spoke to the EEO Program
Manager who allegedly advised him to pursue his claim with the union.
In response, the agency provides a memorandum signed by the agency's
EEO Program manager in which he states that "it is not true that I told
[complainant] that he should pursue his concerns with [the union]".
Complainant has stated that he contacted the agency's EEO Program Manager
as soon as he became aware of his non-selection. The record shows that
complainant was not selected for the position in question on March 29,
1996. Complainant contends that he was misled by the EEO Program Manager
who allegedly advised him to pursue his concerns with the union. The
record shows that on January 30, 1996, complainant had acknowledged
receipt of a copy of a list of EEO counselors, with tours of duty and
phone extension numbers. Complainant also acknowledged that he had
been informed that an aggrieved person had to contact and EEO counselor
within 45 days of the discriminatory event. Notwithstanding these facts,
complainant did not seek EEO counseling regarding his March 29, 1996
non-selection until February 18, 1997.
The Commission has 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. Williams v. Department
of Defense, EEOC Request No. 05920506 (August 25, 1992). Concerning
complainant's complaint, the agency has met its burden. We have previously
held that when an agency leads a complainant to believe he must exhaust
informal avenues for resolving a complaint of discrimination, the time
frame for contacting a counselor will be tolled. Cunningham v. USPS,
EEOC Appeal No. 01956079 (June 24, 1996).
In the instant case, the record reflects that the EEO Program
Manager denies ever advising complainant to pursue his concerns
with the union. Moreover, we find that complainant's argument is
not persuasive. Even though complainant claims that he was misled by
the EEO Program Manager into believing that instead of seeking EEO
counseling, he should pursue his concerns with the union, the record
shows that since January 30, 1996, two months before the non-selection
in question, complainant acknowledged that he had been informed that an
aggrieved person had to contact and EEO Counselor within 45 days of the
discriminatory event. Based on the foregoing, we find that the dismissal
of the claim concerning complainant's non-selection for the position of
Audiovisual Technician on the basis of untimely EEO Counselor contact
was proper.
Volume 64 Fed. Reg. 37,644, 37656 (1999) (to be codified and hereinafter
referred to as
Legal Analysis:
The Commission has 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. Williams v. Department
of Defense, EEOC Request No. 05920506 (August 25, 1992). Concerning
complainant's complaint, the agency has met its burden. We have previously
held that when an agency leads a complainant to believe he must exhaust
informal avenues for resolving a complaint of discrimination, the time
frame for contacting a counselor will be tolled. Cunningham v. USPS,
EEOC Appeal No. 01956079 (June 24, 1996).
In the instant case, the record reflects that the EEO Program
Manager denies ever advising complainant to pursue his concerns
with the union. Moreover, we find that complainant's argument is
not persuasive. Even though complainant claims that he was misled by
the EEO Program Manager into believing that instead of seeking EEO
counseling, he should pursue his concerns with the union, the record
shows that since January 30, 1996, two months before the non-selection
in question, complainant acknowledged that he had been informed that an
aggrieved person had to contact and EEO Counselor within 45 days of the
discriminatory event. Based on the foregoing, we find that the dismissal
of the claim concerning complainant's non-selection for the position of
Audiovisual Technician on the basis of untimely EEO Counselor contact
was proper.
Volume 64 Fed. Reg. 37,644, 37656 (1999) (to be codified and hereinafter
referred to as EEOC Regulation 29 C.F.R. § 1614.107(a)(4)) provides that
an agency shall dismiss a complaint where the complainant has raised
the matter in a negotiated grievance procedure that permits claims of
discrimination. Complainant's formal complaint of discrimination raised
two other issues: the
October 6, 1995 harassment incident and the subsequent one-day
suspension. The record shows that both these issues were raised by
the union on complainant's behalf and that the grievance was denied
by the agency's Associate Director.
Final Decision:
Accordingly, both claims were properly dismissed on the basis that they had been previously raised in a negotiated grievance. Accordingly, the agency's final decision is AFFIRMED. | Michael Martinez v. Department of Veterans Affairs
01984008
July 12, 2000
.
Michael Martinez,
Complainant,
v.
Togo D. West, Jr.,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 01984008
DECISION
We find that the agency's March 31, 1998 decision properly dismissed one
of three claims in complainant's complaint for untimely EEO counselor
contact and two other claims raised in a negotiated grievance.<1>
The record shows that by letter dated November 22, 1995, the agency's
Chief of Staff reduced a proposed 5-day suspension for complainant to
a one-day suspension.
On January 30, 1996, complainant certified that he had received a copy
of a list of EEO Counselors, with tours of duty and phone extension
numbers. Complainant also acknowledged that he had been informed that
an aggrieved person had to contact and EEO Counselor within 45 days of
the discriminatory event.
By letter dated February 27, 1996, the American Federation of Government
Employees (the union) requested that the one-day suspension issued
against complainant be rescinded.<2> Because complainant refused to sign
a proposed agreement regarding the reprimand and one-day suspension,
by letter dated March 28, 1996, the union requested an answer to the
"third step grievance". On March 28, 1996, the agency's Associate Director
denied the grievance.
The record reflects that on March 29, 1996, complainant was not selected
for a position as Audiovisual Production Specialist, GS-9.
By letter dated November 18, 1996, the agency's Associate Director advised
the union that "non-selection is not a grievable issue". On November 22,
1996, complainant once again acknowledged that he had been provided with
a list of EEO counselors. Complainant also acknowledged that he had been
informed about the 45-day time limit for EEO counselor contact.
The EEO Counselor's Report shows that complainant sought EEO counseling
on February 18, 1997, alleging that he had been discriminated against
on the basis of race (Hispanic) when: (1) on March 29, 1996, he was not
selected for the position of Audiovisual Technician; and, (2) on October
23, 1995, he was reprimanded.
Complainant subsequently filed a formal complaint of discrimination
that is the subject of the instant appeal, alleging that he had been
discriminated against on the basis of race when:
(1) on March 29, 1996, he was not selected for the position of Audiovisual
Technician;
(2) on October 23, 1995, he was reprimanded;<3> and
(3) on October 6, 1995, he was harassed.<4>
By letter dated March 20, 1998, complainant's attorney requested a
copy of the alleged grievance filed by complainant concerning his
non-selection for the position of Audiovisual Technician. By letter
dated March 31, 1998, the agency's Personnel Management Specialist
informed complainant's attorney that "nonselection is not a grievable
issue. Therefore, a grievance was not filed regarding [complainant's]
non-selection for the position of Audiovisual Technician".
The agency issued a final decision dismissing the complaint on the grounds
of untimely EEO Counselor contact. The agency found that complainant's
initial EEO Counselor contact had taken place "approximately fourteen
months after his one-day suspension and more than ten months after his
failure to be promoted to the above cited position". The agency also
found that complainant had already raised the issue concerning the
proposed five-day suspension, later reduced to a one-day suspension,
in a grievance.
On appeal, complainant contends that the agency has been unable to provide
evidence to support its contention that a grievance was filed concerning
the issues raised in his formal complaint. Complainant further contends
that upon learning of his non-selection, he spoke to the EEO Program
Manager who allegedly advised him to pursue his claim with the union.
In response, the agency provides a memorandum signed by the agency's
EEO Program manager in which he states that "it is not true that I told
[complainant] that he should pursue his concerns with [the union]".
Complainant has stated that he contacted the agency's EEO Program Manager
as soon as he became aware of his non-selection. The record shows that
complainant was not selected for the position in question on March 29,
1996. Complainant contends that he was misled by the EEO Program Manager
who allegedly advised him to pursue his concerns with the union. The
record shows that on January 30, 1996, complainant had acknowledged
receipt of a copy of a list of EEO counselors, with tours of duty and
phone extension numbers. Complainant also acknowledged that he had
been informed that an aggrieved person had to contact and EEO counselor
within 45 days of the discriminatory event. Notwithstanding these facts,
complainant did not seek EEO counseling regarding his March 29, 1996
non-selection until February 18, 1997.
The Commission has 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. Williams v. Department
of Defense, EEOC Request No. 05920506 (August 25, 1992). Concerning
complainant's complaint, the agency has met its burden. We have previously
held that when an agency leads a complainant to believe he must exhaust
informal avenues for resolving a complaint of discrimination, the time
frame for contacting a counselor will be tolled. Cunningham v. USPS,
EEOC Appeal No. 01956079 (June 24, 1996).
In the instant case, the record reflects that the EEO Program
Manager denies ever advising complainant to pursue his concerns
with the union. Moreover, we find that complainant's argument is
not persuasive. Even though complainant claims that he was misled by
the EEO Program Manager into believing that instead of seeking EEO
counseling, he should pursue his concerns with the union, the record
shows that since January 30, 1996, two months before the non-selection
in question, complainant acknowledged that he had been informed that an
aggrieved person had to contact and EEO Counselor within 45 days of the
discriminatory event. Based on the foregoing, we find that the dismissal
of the claim concerning complainant's non-selection for the position of
Audiovisual Technician on the basis of untimely EEO Counselor contact
was proper.
Volume 64 Fed. Reg. 37,644, 37656 (1999) (to be codified and hereinafter
referred to as EEOC Regulation 29 C.F.R. § 1614.107(a)(4)) provides that
an agency shall dismiss a complaint where the complainant has raised
the matter in a negotiated grievance procedure that permits claims of
discrimination. Complainant's formal complaint of discrimination raised
two other issues: the
October 6, 1995 harassment incident and the subsequent one-day
suspension. The record shows that both these issues were raised by
the union on complainant's behalf and that the grievance was denied
by the agency's Associate Director. Accordingly, both claims were
properly dismissed on the basis that they had been previously raised
in a negotiated grievance. Accordingly, the agency's final decision is
AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0300)
The Commission may, in its discretion, reconsider the decision in this
case if the complainant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. The appellate decision involved a clearly erroneous interpretation
of material fact or law; or
2. The appellate decision will have a substantial impact on the policies,
practices, or operations of the agency.
Requests to reconsider, with supporting statement or brief, MUST BE FILED
WITH THE OFFICE OF FEDERAL OPERATIONS (OFO) WITHIN THIRTY (30) CALENDAR
DAYS of receipt of this decision or WITHIN TWENTY (20) CALENDAR DAYS
OF RECEIPT OF ANOTHER PARTY'S TIMELY REQUEST FOR RECONSIDERATION.See 64
Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred
to as 29 C.F.R. §1614.405); Equal Employment Opportunity Management
Directive for 29 C.F.R. Part 1614 (EEO MD-110), 9 -18 (November 9,
1999). All requests and arguments must be submitted to the Director,
Office of Federal Operations, Equal Employment Opportunity Commission,
P.O. Box 19848, Washington, D.C. 20036. In the absence of a legible
postmark, the request to reconsider shall be deemed timely filed if it
is received by mail within five days of the expiration of the applicable
filing period. See 64 Fed. Reg. 37,644, 37,661 (1999) (to be codified
and hereinafter referred to as 29 C.F.R. §1614.604). The request or
opposition must also include proof of service on the other party.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely, unless extenuating circumstances
prevented the timely filing of the request. Any supporting documentation
must be submitted with your request for reconsideration. The Commission
will consider requests for reconsideration filed after the deadline only
in very limited circumstances. See 29 C.F.R. §1614.604(c).
COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (S0400)
You have the right to file a civil action in an appropriate United States
District Court WITHIN NINETY (90) CALENDAR DAYS from the date that you
receive this decision. If you file a civil action, YOU MUST NAME AS THE
DEFENDANT IN THE COMPLAINT THE PERSON WHO IS THE OFFICIAL AGENCY HEAD
OR DEPARTMENT HEAD, IDENTIFYING THAT PERSON BY HIS OR HER FULL NAME AND
OFFICIAL TITLE. Failure to do so may result in the dismissal of your case
in court. "Agency" or "department" means the national organization, and
not the local office, facility or department in which you work. If you
file a request to reconsider and also file a civil action, filing a civil
action will terminate the administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z1199)
If you decide to file a civil action, and if you do not have or cannot
afford the services of an attorney, you may request that the Court
appoint an attorney to represent you and that the Court permit you to
file the action without payment of fees, costs, or other security. See
Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §2000e
et seq .; the Rehabilitation Act of 1973, as amended, 29 U.S.C. §§791,
794(c). The grant or denial of the request is within the sole discretion
of the Court. Filing a request for an attorney does not extend your time
in which to file a civil action. Both the request and the civil action
must be filed within the time limits as stated in the paragraph above
("Right to File A Civil Action").
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
July 12, 2000
__________________
Date
1On November 9, 1999, revised regulations governing the EEOC's federal
sector complaint process went into effect. These regulations apply to all
Federal sector EEO complaints pending at any stage in the administrative
process. Consequently, the Commission will apply the revised regulations
found at 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.
2The record shows that the agency's grievance procedure permits claims
of discrimination.
3A review of the record persuades the Commission that complainant
consistently defines the one-day suspension as a "reprimand".
4A review of the record shows that on October 6, 1995, complainant
exchanged words with a supervisor. The record further shows that
this incident culminated in the proposed 5-day suspension, that was
subsequently reduced to a one-day suspension.
| [
"Williams v. Department of Defense, EEOC Request No. 05920506 (August 25, 1992)",
"Cunningham v. USPS, EEOC Appeal No. 01956079 (June 24, 1996)",
"29 C.F.R. § 1614.107(a)"
] | [
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0.05715432018041611,
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0.04522... |
178 | https://www.eeoc.gov/sites/default/files/migrated_files/decisions/01991170.txt | 01991170.txt | TXT | text/plain | 10,567 | Barbara A. Harris v. Department of the Navy 01991170 April 18, 2001 . Barbara A. Harris, Complainant, v. Robert B. Pirie, Jr., Acting Secretary, Department of the Navy, Agency. | April 18, 2001 | Appeal Number: 01991170
Case Facts:
Complainant filed a timely appeal with this Commission from an agency
decision pertaining to 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 Commission accepts the appeal
in accordance with 29 C.F.R. § 1614.405.
According to the Counselor's Report, complainant contacted the EEO office
on July 13, 1998 regarding claims of a hostile work environment and
management's failure to respond to her complaints. Complainant claimed
that the alleged discrimination occurred from 1992 through February 1998.
Informal efforts to resolve complainant's concerns were unsuccessful.
Subsequently, complainant filed a formal complaint based on race and sex.
On October 29, 1998, the agency issued a decision dismissing the
complaint for untimely counselor contact. The agency reasoned that
while complainant indicated that the allegedly discriminatory events
occurred between 1992 and February 1998, it was not until July 13,
1998, when her attorney wrote to the EEO Office, that contact was made.
According to the agency, neither complainant nor her attorney offered
any reason for the delayed contact.
On appeal, complainant, through her attorney, argues that contact
was made on the same date as the last incident, February 6, 1998.
Complainant asserts that on that day she sent an e-mail to the Captain
of the Naval Submarine Base, the Director of the EEO office, and others,
regarding derogatory comments made by co-workers and the posting of black
history month posters. Complainant states that the e-mail resulted in a
meeting, which included the captain and EEO Director, and was followed
by a meeting with an EEO Counselor. Lastly, complainant notes that
after the February 1998 incident she was forced to take medical leave.
Therefore, complainant argues, that even if she had not been timely she
would certainly have a valid excuse, given the state of her mental and
emotional condition.
In response, the agency argues that complainant was aware of the time
limits because she has filed numerous EEO complaints since 1990 and EEO
posters were on display. With respect to the February 6, 1998 e-mail,
the agency asserts that the message was sent to several individuals
and the EEO office was not contacted with the purpose of filing an EEO
complaint. The agency also disputes complainant's belief that the EEO
Manager referred the e-mail to the EEO Counselor. A meeting was simply
held in an attempt to resolve the dispute. The agency contends that
complainant never expressed a desire to file an EEO complaint, but rather,
was asking management to resolve the issue. Regarding complainant's
health, the agency noted that she was at work until February 28, 1998,
approximately eighteen days after the most recent event, and did not
contact the EEO office. Moreover, the agency noted that complainant was
at work on two other occasions, between February 24 and March 9, 1998,
and did not initiate contact with an EEO Counselor.
Legal Analysis:
The Commission accepts the appeal
in accordance with 29 C.F.R. § 1614.405.
According to the Counselor's Report, complainant contacted the EEO office
on July 13, 1998 regarding claims of a hostile work environment and
management's failure to respond to her complaints. Complainant claimed
that the alleged discrimination occurred from 1992 through February 1998.
Informal efforts to resolve complainant's concerns were unsuccessful.
Subsequently, complainant filed a formal complaint based on race and sex.
On October 29, 1998, the agency issued a decision dismissing the
complaint for untimely counselor contact. The agency reasoned that
while complainant indicated that the allegedly discriminatory events
occurred between 1992 and February 1998, it was not until July 13,
1998, when her attorney wrote to the EEO Office, that contact was made.
According to the agency, neither complainant nor her attorney offered
any reason for the delayed contact.
On appeal, complainant, through her attorney, argues that contact
was made on the same date as the last incident, February 6, 1998.
Complainant asserts that on that day she sent an e-mail to the Captain
of the Naval Submarine Base, the Director of the EEO office, and others,
regarding derogatory comments made by co-workers and the posting of black
history month posters. Complainant states that the e-mail resulted in a
meeting, which included the captain and EEO Director, and was followed
by a meeting with an EEO Counselor. Lastly, complainant notes that
after the February 1998 incident she was forced to take medical leave.
Therefore, complainant argues, that even if she had not been timely she
would certainly have a valid excuse, given the state of her mental and
emotional condition.
In response, the agency argues that complainant was aware of the time
limits because she has filed numerous EEO complaints since 1990 and EEO
posters were on display. With respect to the February 6, 1998 e-mail,
the agency asserts that the message was sent to several individuals
and the EEO office was not contacted with the purpose of filing an EEO
complaint. The agency also disputes complainant's belief that the EEO
Manager referred the e-mail to the EEO Counselor. A meeting was simply
held in an attempt to resolve the dispute. The agency contends that
complainant never expressed a desire to file an EEO complaint, but rather,
was asking management to resolve the issue. Regarding complainant's
health, the agency noted that she was at work until February 28, 1998,
approximately eighteen days after the most recent event, and did not
contact the EEO office. Moreover, the agency noted that complainant was
at work on two other occasions, between February 24 and March 9, 1998,
and did not initiate contact with an EEO Counselor.
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.
To satisfy the forty-five day contact requirement, the Commission has
consistently required complainants to contact an EEO Counselor or official
logically connected with the EEO process, and exhibit an intent to being
the EEO process. EEOC Management Directive (MD-110), 2-1 (November 9,
1999); see Washington v. Government Printing Office, Request No. 05970523
(Jan. 19, 1999)(expressing belief that discrimination occurred, without
exhibiting intent to file a complaint, did not constitute counselor
contact for time limitation purposes).
Here, the record contains a copy of the February 6, 1998 e-mail, which
was sent to several individuals connected with management, the union,
and the EEO office. In the e-mail, complainant described an incident
where co-workers were exchanging negative comments about Black History
Month events. Complainant explained that she was currently in an ongoing
grievance situation about being treated different from my coworkers and
about racist remarks being said to me....Now who can I speak to that
can make something happen about these comments? We do not find that
the complainant exhibited the requisite intent to begin the EEO process
at the time of the February 1998 e-mail. Moreover, given complainant's
prior experience with the EEO process, we find that she was aware of
the forty-five-day time limitation.
With respect to complainant's contentions that her health prevented her
from timely contacting the EEO office, we disagree. 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. United States Postal Service, EEOC Request No. 05980475
(August 6, 1998); Crear v. United States Postal Service, EEOC Request
No. 05920700 (October 29, 1992). While complainant refers to post
traumatic stress disorder and her inability to return to work, the record
does not establish that she was so incapacitated that she was unable to
contact the EEO office in a timely manner.
Final Decision:
Accordingly, the agency's decision to dismiss the complaint was proper and is hereby AFFIRMED. | Barbara A. Harris v. Department of the Navy
01991170
April 18, 2001
.
Barbara A. Harris,
Complainant,
v.
Robert B. Pirie, Jr.,
Acting Secretary,
Department of the Navy,
Agency.
Appeal No. 01991170
Agency No. DON 98-42237-006
DECISION
Complainant filed a timely appeal with this Commission from an agency
decision pertaining to 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 Commission accepts the appeal
in accordance with 29 C.F.R. § 1614.405.
According to the Counselor's Report, complainant contacted the EEO office
on July 13, 1998 regarding claims of a hostile work environment and
management's failure to respond to her complaints. Complainant claimed
that the alleged discrimination occurred from 1992 through February 1998.
Informal efforts to resolve complainant's concerns were unsuccessful.
Subsequently, complainant filed a formal complaint based on race and sex.
On October 29, 1998, the agency issued a decision dismissing the
complaint for untimely counselor contact. The agency reasoned that
while complainant indicated that the allegedly discriminatory events
occurred between 1992 and February 1998, it was not until July 13,
1998, when her attorney wrote to the EEO Office, that contact was made.
According to the agency, neither complainant nor her attorney offered
any reason for the delayed contact.
On appeal, complainant, through her attorney, argues that contact
was made on the same date as the last incident, February 6, 1998.
Complainant asserts that on that day she sent an e-mail to the Captain
of the Naval Submarine Base, the Director of the EEO office, and others,
regarding derogatory comments made by co-workers and the posting of black
history month posters. Complainant states that the e-mail resulted in a
meeting, which included the captain and EEO Director, and was followed
by a meeting with an EEO Counselor. Lastly, complainant notes that
after the February 1998 incident she was forced to take medical leave.
Therefore, complainant argues, that even if she had not been timely she
would certainly have a valid excuse, given the state of her mental and
emotional condition.
In response, the agency argues that complainant was aware of the time
limits because she has filed numerous EEO complaints since 1990 and EEO
posters were on display. With respect to the February 6, 1998 e-mail,
the agency asserts that the message was sent to several individuals
and the EEO office was not contacted with the purpose of filing an EEO
complaint. The agency also disputes complainant's belief that the EEO
Manager referred the e-mail to the EEO Counselor. A meeting was simply
held in an attempt to resolve the dispute. The agency contends that
complainant never expressed a desire to file an EEO complaint, but rather,
was asking management to resolve the issue. Regarding complainant's
health, the agency noted that she was at work until February 28, 1998,
approximately eighteen days after the most recent event, and did not
contact the EEO office. Moreover, the agency noted that complainant was
at work on two other occasions, between February 24 and March 9, 1998,
and did not initiate contact with an EEO Counselor.
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.
To satisfy the forty-five day contact requirement, the Commission has
consistently required complainants to contact an EEO Counselor or official
logically connected with the EEO process, and exhibit an intent to being
the EEO process. EEOC Management Directive (MD-110), 2-1 (November 9,
1999); see Washington v. Government Printing Office, Request No. 05970523
(Jan. 19, 1999)(expressing belief that discrimination occurred, without
exhibiting intent to file a complaint, did not constitute counselor
contact for time limitation purposes).
Here, the record contains a copy of the February 6, 1998 e-mail, which
was sent to several individuals connected with management, the union,
and the EEO office. In the e-mail, complainant described an incident
where co-workers were exchanging negative comments about Black History
Month events. Complainant explained that she was currently in an ongoing
grievance situation about being treated different from my coworkers and
about racist remarks being said to me....Now who can I speak to that
can make something happen about these comments? We do not find that
the complainant exhibited the requisite intent to begin the EEO process
at the time of the February 1998 e-mail. Moreover, given complainant's
prior experience with the EEO process, we find that she was aware of
the forty-five-day time limitation.
With respect to complainant's contentions that her health prevented her
from timely contacting the EEO office, we disagree. 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. United States Postal Service, EEOC Request No. 05980475
(August 6, 1998); Crear v. United States Postal Service, EEOC Request
No. 05920700 (October 29, 1992). While complainant refers to post
traumatic stress disorder and her inability to return to work, the record
does not establish that she was so incapacitated that she was unable to
contact the EEO office in a timely manner.
Accordingly, the agency's decision to dismiss the complaint 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
April 18, 2001
__________________
Date
| [
"Howard v. Department of the Navy, EEOC Request No. 05970852 (February 11, 1999)",
"Davis v. United States Postal Service, EEOC Request No. 05980475 (August 6, 1998)",
"Crear v. United States Postal Service, EEOC Request No. 05920700 (October 29, 1992)",
"29 C.F.R. § 1614.405",
"29 C.F.R. § 1614.105(a)",
... | [
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0.019059203565120697,
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0.06358039379119873,
0.013957814313471317,
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179 | https://www.eeoc.gov/sites/default/files/migrated_files/decisions/0120092853.txt | 0120092853.txt | TXT | text/plain | 13,312 | Haroll J. Austin, Complainant, v. Pete Geren, Secretary, Department of the Army, Agency. | May 12, 2009 | Appeal Number: 0120092853
Legal Analysis:
the Commission stated that "the agency has the burden of providing
evidence and/or proof to support its final decisions." See also Gens
v. Department of Defense, EEOC Request No. 05910837 (January 31, 1992).
An aggrieved person must seek EEO counseling within 45 days of the date
of the alleged discriminatory action, or in the case of a personnel
action, within 45 days of the effective date of the action. 29 C.F.R. §
1614.105(a)(1) & .107(a)(2). The agency or the Commission shall extend
the 45 day time limit when the individual shows there is a reason
to do so which is considered sufficient by the agency or Commission.
29 C.F.R. § 1614.105(a)(2).
Complainant contends that he contacted EEO staff within the applicable
regulatory time limit after the effective date of his removal, and was
told his only option was as stated in the removal letter. The record
does not reflect the precise nature of their discussions, so we decline
to rule that the agency misled complainant on his various procedural
rights to challenge the removal. However, complainant states he timely
discussed his removal with three identified EEO officials, and the agency
does not contest this. Given this, and the absence of documentation in
the record that complainant ever expressed he did not want to pursue an
EEO claim at the time; we find that complainant timely contacted an EEO
counselor regarding claim 5.
Complainant failed to timely initiate EEO counseling on claim 3. He does
not contend he discussed this matter with EEO staffers in his initial
contacts, and the counselor's report does not reflect that he raised
this claim in his subsequent contact with the EEO office in March 2009.
We also find that complainant did not show he timely contacted an EEO
counselor on claim 4. His appeal argument indicates he timely contacted
an EEO counselor regarding the removal, but it does not indicate whether
he did so on claim 4. However, as complainant claims the charges which
gave rise to his removal were discriminatory, the matter will need to
be investigated to the extent it relates to the discriminatory removal
claim.
ORDER (E0408)
The agency is ordered to process claim 5, as numbered herein,
in accordance with 29 C.F.R. § 1614.108. The agency shall
acknowledge to the complainant that it has received claim 5 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 (K1208)
Compliance with the Commission's corrective action is mandatory.
The agency shall submit its compliance report within thirty (30) calendar
days of the completion of all ordered corrective action. The report shall
be submitted to the Compliance Officer, Office of Federal Operations,
Equal Employment Opportunity Commission, P.O. Box 77960, Washington,
DC 20013. The agency's report must contain supporting documentation,
and the agency must send a copy of all submissions to the complainant.
If the agency does not comply with the Commission's order, the complainant
may petition the Commission for enforcement of the order. 29 C.F.R. §
1614.503(a). The complainant also has the right to file a civil action
to enforce compliance with the Commission's order prior to or following
an administrative petition for enforcement. See 29 C.F.R. §§ 1614.407,
1614.408, and 29 C.F.R. § 1614.503(g). Alternatively, the complainant
has the right to file a civil action on the underlying complaint in
accordance with the paragraph below entitled "Right to File A Civil
Action." 29 C.F.R. §§ 1614.407 and 1614.408. A civil action for
enforcement or a civil action on the underlying complaint is subject
to the deadline stated in 42 U.S.C. 2000e-16(c) (1994 & Supp. IV 1999).
If the complainant files a civil action, the administrative processing of
the complaint, including any petition for enforcement, will be terminated.
See 29 C.F.R. § 1614.409. | Haroll J. Austin,
Complainant,
v.
Pete Geren,
Secretary,
Department of the Army,
Agency.
Appeal No. 0120092853
Agency No. ARRRAD09MAR01216
DECISION
Complainant filed a timely appeal with this Commission from the final
agency decision (FAD) dated May 12, 2009, 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. In
his complaint, complainant alleged that he was subjected to discrimination
on the basis of age (60) and reprisal for prior EEO activity when:
1. while he was deployed in Iraq (2008), he was called "lightening"
and told he needed to use a walker;
2. while deployed in Iraq (2008), management gave false information
to medical which the Red River Army Depot relied upon as the basis for
returning him from Iraq;
3. he worked outside of his experience and classification in jobs with
higher physical demands, and without further medical evaluation and
treatment of the condition which was alleged by management, in Iraq and
the Red River Army Depot;1
4. on September 30, 2008, he was harassed by security guards and/or
police and forced to leave private property and accompany the guards onto
the depot property, and was subject to a drug test which was performed
inconsistently with protocol; and
5. he was terminated during his probationary period effective October
29, 2008, for illegal use of a controlled substance -marijuana [stemming
from the referenced drug test taken on September 30, 2008].
The FAD dismissed claims 1 and 2 for stating the same claim that in a
prior complaint. 29 C.F.R. § 1614.107(a)(1). It dismissed claim 2 for
failure to timely initiate contact with an EEO counselor. It reasoned
that complainant did not initiate EEO counseling until March 26, 2009,
beyond the 45 calendar day time limit to do so.
Complainant made argument on appeal in two separate pieces of
correspondence. He explicitly does not contest the dismissal of claims
1 and 2. Accordingly, we need not address this matter.
Complainant, who was an EEO Specialist for more than a 11/2 years starting
in 1985, had EEO training in February 2008 about the EEO program,
including the 45 calendar time limit to initiate EEO counseling, and
filed a prior complaint in mid-August 2008, concedes that he was aware
of EEO procedural matters such as timeliness. He argues that since the
effective date of his removal, he had continual discussions with the
agency's EEO office. After referring to the removal letter, he writes
that he timely contacted EEO staff, and identifies by name three staffers
with whom he had discussions. He writes that they discussed the agency's
physical boundaries, and that the EEO staffers continually told him his
only options were as stated in his removal letter. The removal letter
explains complainant may appeal to the Merit Systems Protection Board
(MSPB) if he is claiming discrimination based on political affiliation
or marital status.
Complainant contends that subsequently in mid-December 2008, he saw
two newspaper articles about disciplinary cases at the Red River Army
Depot which made him realize his own discipline was handled differently,
and this prompted him to contact the EEO office again.
In opposition to the appeal, in relevant part, the agency submits
evidence that complainant was aware of his EEO rights and procedures,
which is recounted above. It also argues that while complainant contends
he learned of a disparity in discipline in mid-December 2008, he did not
contact an EEO counselor until three months later. The agency does not
respond to complainant's contention that he timely initiated EEO contact
long prior to March 26, 2008.
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)). In addition, in
Ericson v. Department of the Army, EEOC Request No. 05920623 (January 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. Department of Defense, EEOC Request No. 05910837 (January 31, 1992).
An aggrieved person must seek EEO counseling within 45 days of the date
of the alleged discriminatory action, or in the case of a personnel
action, within 45 days of the effective date of the action. 29 C.F.R. §
1614.105(a)(1) & .107(a)(2). The agency or the Commission shall extend
the 45 day time limit when the individual shows there is a reason
to do so which is considered sufficient by the agency or Commission.
29 C.F.R. § 1614.105(a)(2).
Complainant contends that he contacted EEO staff within the applicable
regulatory time limit after the effective date of his removal, and was
told his only option was as stated in the removal letter. The record
does not reflect the precise nature of their discussions, so we decline
to rule that the agency misled complainant on his various procedural
rights to challenge the removal. However, complainant states he timely
discussed his removal with three identified EEO officials, and the agency
does not contest this. Given this, and the absence of documentation in
the record that complainant ever expressed he did not want to pursue an
EEO claim at the time; we find that complainant timely contacted an EEO
counselor regarding claim 5.
Complainant failed to timely initiate EEO counseling on claim 3. He does
not contend he discussed this matter with EEO staffers in his initial
contacts, and the counselor's report does not reflect that he raised
this claim in his subsequent contact with the EEO office in March 2009.
We also find that complainant did not show he timely contacted an EEO
counselor on claim 4. His appeal argument indicates he timely contacted
an EEO counselor regarding the removal, but it does not indicate whether
he did so on claim 4. However, as complainant claims the charges which
gave rise to his removal were discriminatory, the matter will need to
be investigated to the extent it relates to the discriminatory removal
claim.
ORDER (E0408)
The agency is ordered to process claim 5, as numbered herein,
in accordance with 29 C.F.R. § 1614.108. The agency shall
acknowledge to the complainant that it has received claim 5 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 (K1208)
Compliance with the Commission's corrective action is mandatory.
The agency shall submit its compliance report within thirty (30) calendar
days of the completion of all ordered corrective action. The report shall
be submitted to the Compliance Officer, Office of Federal Operations,
Equal Employment Opportunity Commission, P.O. Box 77960, Washington,
DC 20013. The agency's report must contain supporting documentation,
and the agency must send a copy of all submissions to the complainant.
If the agency does not comply with the Commission's order, the complainant
may petition the Commission for enforcement of the order. 29 C.F.R. §
1614.503(a). The complainant also has the right to file a civil action
to enforce compliance with the Commission's order prior to or following
an administrative petition for enforcement. See 29 C.F.R. §§ 1614.407,
1614.408, and 29 C.F.R. § 1614.503(g). Alternatively, the complainant
has the right to file a civil action on the underlying complaint in
accordance with the paragraph below entitled "Right to File A Civil
Action." 29 C.F.R. §§ 1614.407 and 1614.408. A civil action for
enforcement or a civil action on the underlying complaint is subject
to the deadline stated in 42 U.S.C. 2000e-16(c) (1994 & Supp. IV 1999).
If the complainant files a civil action, the administrative processing of
the complaint, including any petition for enforcement, will be terminated.
See 29 C.F.R. § 1614.409.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
The Commission may, in its discretion, reconsider the decision in this
case if the complainant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. The appellate decision involved a clearly erroneous interpretation
of material fact or law; or
2. The appellate decision will have a substantial impact on the
policies, practices, or operations of the agency.
Requests to reconsider, with supporting statement or brief, must be filed
with the Office of Federal Operations (OFO) within thirty (30) calendar
days of receipt of this decision or within twenty (20) calendar days of
receipt of another party's timely request for reconsideration. See 29
C.F.R. § 1614.405; Equal Employment Opportunity Management Directive for
29 C.F.R. Part 1614 (EEO MD-110), 9-18 (November 9, 1999). All requests
and arguments must be submitted to the Director, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 77960,
Washington, DC 20013. In the absence of a legible postmark, the request
to reconsider shall be deemed timely filed if it is received by mail
within five days of the expiration of the applicable filing period.
See 29 C.F.R. § 1614.604. The request or opposition must also include
proof of service on the other party.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely, unless extenuating circumstances
prevented the timely filing of the request. Any supporting documentation
must be submitted with your request for reconsideration. The Commission
will consider requests for reconsideration filed after the deadline only
in very limited circumstances. See 29 C.F.R. § 1614.604(c).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (T0408)
This decision affirms the agency's final decision/action in part, but it
also requires the agency to continue its administrative processing of a
portion of your complaint. You have the right to file a civil action in
an appropriate United States District Court within ninety (90) calendar
days from the date that you receive this decision on both that portion
of your complaint which the Commission has affirmed and that portion
of the complaint which has been remanded for continued administrative
processing. In the alternative, you may file a civil action after
one hundred and eighty (180) calendar days of the date you filed your
complaint with the agency, or your appeal with the Commission, until
such time as the agency issues its final decision on your complaint.
If you file a civil action, you must name as the defendant in the
complaint the person who is the official agency head or department head,
identifying that person by his or her full name and official title.
Failure to do so may result in the dismissal of your case in court.
"Agency" or "department" means the national organization, and not the
local office, facility or department in which you work. If you file
a request to reconsider and also file a civil action, filing a civil
action will terminate the administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z1008)
If you decide to file a civil action, and if you do not have or cannot
afford the services of an attorney, you may request from the Court that
the Court appoint an attorney to represent you and that the Court also
permit you to file the action without payment of fees, costs, or other
security. See Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. § 2000e et seq.; the Rehabilitation Act of 1973, as amended,
29 U.S.C. §§ 791, 794(c). The grant or denial of the request is within
the sole discretion of the Court. Filing a request for an attorney with
the Court does not extend your time in which to file a civil action.
Both the request and the civil action must be filed within the time
limits as stated in the paragraph above ("Right to File A Civil Action").
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
September 17, 2009
__________________
Date
1 The definition of this claim has been reworded to more closely match
the wording in the complaint.
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??
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"Ericson v. Department of the Army, EEOC Request No. 05920623 (January 14, 1993)",
"Gens v. Department of Defense, EEOC Request No. 05910837 (January 31, 1992)",
"29 C.F.R. § 1614.107(a)",
"29 C.F.R. § 1614.105(a)",
"29 C.F.... | [
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180 | https://www.eeoc.gov/sites/default/files/decisions/2024_02_05/2023003283.pdf | 2023003283.pdf | PDF | application/pdf | 12,786 | Cythia Q.,1 Complainant, v. Janet L. Yellen, Secretary, Department of the Treasury (Bureau of Engraving and Printing), Agency. | April 25, 2023 | Appeal Number: 2023003283
Background:
At the time of events giving rise to this complaint, Complainant worked as a Plate Printer, WE -
4454- 03, at the Agency’s Manufacturing DCF -Plate Printing Division facility in Brandywine,
Maryland. On April 18, 2023, Complainant filed a formal complaint alleging that the Agency subjected her to discrimination on the bases of sex (female), age ( YOB:1968 ), and reprisal for prior protected
EEO activity when: on October 13, 2022, she was not selected for a specialist assignment
opportunity. The Agency dismis sed this claim pursuant to 29 C.F.R. § 1614.107(a)(2) for untimely EEO
counselor contact.
The Agency also found that an additional claim raised by Complainant, that on April 3, 2023 she
was not allowed to earn the compensation that would have resulted if she had been selected for
the specialist assignment, was subsumed in her nonselection claim and did not stand alone as a separate claim. Complainant filed the in stant appeal.
On appeal, Complainant contends her appeal was not handled appropriately and in a timely
manner. In support of this, Complainant states she was on vacation in the month of December when she was contacted through her job email address. She states that she did respond in a
timely manner to file a formal response from the email that was sent to her on April 10, 2023 by
the EEO counselor.
The Agency contends on appeal that Complainant’s EEO counselor contact was untimely because Complainant suspected discrimination on October 13, 2022 and she ha s not provided
any additional reasons as to why the 45- day timeline should be tolled. As to Complainant’s
arguments that she did not suspect discrimination until later, the Agency states that Complainant’s November 28, 2022 inquiry to management did not constitute EEO counselor contact because Complainant did not contact an individual logically connected to the EEO process or express an intent to pursue the EEO process , but even if it did, it was still untimely
because it was more than 45 days after she learned of her nonselection. The Agency argues that
while Complainant states she did not suspect discrimination until December 1, 2022 when she received management’s response, her statement to the EEO counselor that she asked on October
13, 2022 why a female was not selected shows she suspected discrimination at that time. The
Agency noted that Complainant has been an Agency employee for over 30 years , she has
previously filed EEO complaints, and she received training pertaining to EEO complaints and
filing requirements as recently as August 16, 2022.
Legal Analysis:
EEOC Regulation 29 C.F.R. §1614.105(a)(1) provides that an aggrieved person must initiate contact with an EEO Counselor within forty -five (45) days of the date of the matter alleged to be
discriminatory or, in the case of a personnel action, within forty -five (45) days of the effective
date of the action. EEOC Regulation 29 C.F.R. § 1614.107(a)(2) provides for the dismiss al of
complaints where the complainant did not initiate contact with an EEO Counselor within forty -
five (45) days of the date of the matter alleged to be discriminatory or, in the case of a personnel action, 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 Junior T. v. U.S. Postal Serv., EEOC Appeal No.
2023002297 (Apr. 27, 2023) (citing 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.
Additionally, a complainant satisfies the requirement of counselor contact by contacting an
agency official “logically connected” with the EEO process, even if that official is not an EEO Counselor, and by exhibiting an intent to begin the EEO process. See 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); Al len 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).
EEOC Regulation 29 C.F.R. § 1614.105(a)(2) allows the Agency or the Commission to extend the time limit if Complaina nt can establish that Complainant was not aware of the time limit, that
Complainant did not know and reasonably should not have known that the discriminatory matter or personnel action occurred, that despite due diligence complainant was prevented by circu mstances beyond h is control from contacting the EEO Counselor within the time limit, or
for other reasons considered sufficient by the Agency or Commission.
Here, Complainant learned of her non- selection on October 13, 2022. She stated in her formal
complaint that she questioned Division Manager (the selecting official) that same day as to why
a female was not selected and he responded that Complainant would not leave her family and she
was approaching retirement. Thus, Complainant’s statements reflect th at she suspected
discrimination that day . Therefore, Complainant needed to contact an EEO counselor on or
before November 28, 2022
2 in order to make timely EEO counselor contact.
Complainant provided a copy of a letter to an Associate Director , Manufacturing dated
November 28, 2022. In the letter, Complainant states she asked Division Manager why a female could not be picked. Complainant also wrote that she felt the selection could be biased, not made on merits, and she felt like she was being di scriminated against. However, she did not mention
making any sort of complaint, instead stating she was expressing her “dissatisfaction with decisions in my division.” She also did not mention the EEO process. Therefore, we find
Complainant did not exhibit an intent to begin the EEO process at that time. See Ellard v. Dep’t
of Veteran’s Affairs , EEOC Appeal No. 01964182 (Jan. 16, 1997), request for reconsideration
denied, EEOC Request No. 05970483 (May 22, 1997). We find Complainant first exhibit ed an intent to begin the EEO process on January 10, 2023
when she requested the appropriate documents from an EEO counselor. However, this is well outside the 45- day time period. Complainant has previously filed EEO compla ints and she has
also completed Agency -mandated online training pertaining to EEO complaints and filing
requirements as recently as August 2022. We find Complainant has not provided sufficient
justification for tolling or extending the time limit. The Agency properly dismissed
Complainant’s formal complaint for failure to state a claim.
2 Forty -five days from October 13, 2022 is November 27, 2022. However, November 27, 2022
was a Sunday. Applying 29 C.F.R. § 1614.604( g), the time limit is extended to the next business
day: Monday, November 28, 2022. | Cythia Q.,1
Complainant,
v.
Janet L. Yellen,
Secretary,
Department of the Treasury
(Bureau of Engraving and Printing),
Agency.
Appeal No. 2023003283
Agency No. BEP-23-0259-F
DECISION
Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC
or Commission) from the Agency's decision dated April 25, 2023, dismissing her complaint of
unlawful employment discrimination in violation of Title VII of the Civil R ights Act of 1964
(Title VII), as amended, 42 U.S.C. § 2000e et seq. and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Plate Printer, WE -
4454- 03, at the Agency’s Manufacturing DCF -Plate Printing Division facility in Brandywine,
Maryland. On April 18, 2023, Complainant filed a formal complaint alleging that the Agency subjected her to discrimination on the bases of sex (female), age ( YOB:1968 ), and reprisal for prior protected
EEO activity when: on October 13, 2022, she was not selected for a specialist assignment
opportunity. The Agency dismis sed this claim pursuant to 29 C.F.R. § 1614.107(a)(2) for untimely EEO
counselor contact.
The Agency also found that an additional claim raised by Complainant, that on April 3, 2023 she
was not allowed to earn the compensation that would have resulted if she had been selected for
the specialist assignment, was subsumed in her nonselection claim and did not stand alone as a separate claim. Complainant filed the in stant appeal.
On appeal, Complainant contends her appeal was not handled appropriately and in a timely
manner. In support of this, Complainant states she was on vacation in the month of December when she was contacted through her job email address. She states that she did respond in a
timely manner to file a formal response from the email that was sent to her on April 10, 2023 by
the EEO counselor.
The Agency contends on appeal that Complainant’s EEO counselor contact was untimely because Complainant suspected discrimination on October 13, 2022 and she ha s not provided
any additional reasons as to why the 45- day timeline should be tolled. As to Complainant’s
arguments that she did not suspect discrimination until later, the Agency states that Complainant’s November 28, 2022 inquiry to management did not constitute EEO counselor contact because Complainant did not contact an individual logically connected to the EEO process or express an intent to pursue the EEO process , but even if it did, it was still untimely
because it was more than 45 days after she learned of her nonselection. The Agency argues that
while Complainant states she did not suspect discrimination until December 1, 2022 when she received management’s response, her statement to the EEO counselor that she asked on October
13, 2022 why a female was not selected shows she suspected discrimination at that time. The
Agency noted that Complainant has been an Agency employee for over 30 years , she has
previously filed EEO complaints, and she received training pertaining to EEO complaints and
filing requirements as recently as August 16, 2022.
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R. §1614.105(a)(1) provides that an aggrieved person must initiate contact with an EEO Counselor within 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 Regulation 29 C.F.R. § 1614.107(a)(2) provides for the dismiss al of
complaints where the complainant did not initiate contact with an EEO Counselor within forty -
five (45) days of the date of the matter alleged to be discriminatory or, in the case of a personnel action, 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 Junior T. v. U.S. Postal Serv., EEOC Appeal No.
2023002297 (Apr. 27, 2023) (citing 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.
Additionally, a complainant satisfies the requirement of counselor contact by contacting an
agency official “logically connected” with the EEO process, even if that official is not an EEO Counselor, and by exhibiting an intent to begin the EEO process. See 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); Al len 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).
EEOC Regulation 29 C.F.R. § 1614.105(a)(2) allows the Agency or the Commission to extend the time limit if Complaina nt can establish that Complainant was not aware of the time limit, that
Complainant did not know and reasonably should not have known that the discriminatory matter or personnel action occurred, that despite due diligence complainant was prevented by circu mstances beyond h is control from contacting the EEO Counselor within the time limit, or
for other reasons considered sufficient by the Agency or Commission.
Here, Complainant learned of her non- selection on October 13, 2022. She stated in her formal
complaint that she questioned Division Manager (the selecting official) that same day as to why
a female was not selected and he responded that Complainant would not leave her family and she
was approaching retirement. Thus, Complainant’s statements reflect th at she suspected
discrimination that day . Therefore, Complainant needed to contact an EEO counselor on or
before November 28, 2022
2 in order to make timely EEO counselor contact.
Complainant provided a copy of a letter to an Associate Director , Manufacturing dated
November 28, 2022. In the letter, Complainant states she asked Division Manager why a female could not be picked. Complainant also wrote that she felt the selection could be biased, not made on merits, and she felt like she was being di scriminated against. However, she did not mention
making any sort of complaint, instead stating she was expressing her “dissatisfaction with decisions in my division.” She also did not mention the EEO process. Therefore, we find
Complainant did not exhibit an intent to begin the EEO process at that time. See Ellard v. Dep’t
of Veteran’s Affairs , EEOC Appeal No. 01964182 (Jan. 16, 1997), request for reconsideration
denied, EEOC Request No. 05970483 (May 22, 1997). We find Complainant first exhibit ed an intent to begin the EEO process on January 10, 2023
when she requested the appropriate documents from an EEO counselor. However, this is well outside the 45- day time period. Complainant has previously filed EEO compla ints and she has
also completed Agency -mandated online training pertaining to EEO complaints and filing
requirements as recently as August 2022. We find Complainant has not provided sufficient
justification for tolling or extending the time limit. The Agency properly dismissed
Complainant’s formal complaint for failure to state a claim.
2 Forty -five days from October 13, 2022 is November 27, 2022. However, November 27, 2022
was a Sunday. Applying 29 C.F.R. § 1614.604( g), the time limit is extended to the next business
day: Monday, November 28, 2022.
CONCLUSION
For the foregoing reasons, we AFFIRM the Agency’s dismissal of 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 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 his or her request for reconsideration, a nd any statement or brief in
support of his or her request, via the EEOC Public Portal, which can be found at
https://publicportal.eeoc.gov/Portal/Login.aspx
Alternatively, Complainant can submit his or her request and arguments to the Director, Office
of Federal Operations, Equal Employment Opportunity Commission, via regular mail addressed to P.O. Box 77960, Washington, DC 20013, or by certified mail addresse d to 131 M Street, NE,
Washington, DC 20507. In the absence of a legible postmark, a complainant’s request to reconsider shall be deemed timely filed if OFO receives it by mail within five days of the expiration of the applicable filing period. See 29 C. F.R. § 1614.604.
An agency’s request for reconsideration must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Either party’s request
and/or statement or brief in opposition must also include proof of service on the other party, unless Complainant files his or her request via the EEOC Public Portal, in which case no proof of service is required.
Failure to file within the 30 -day time period will result in dismissal of the party’s request for
reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the
request.
Any supporting documentation must be submitted together with the request for
reconsideration. The Commission will consider requests for reconsidera tion filed after the
deadline only in very limited circumstances. See 29 C.F.R. § 1614.604(c).
COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION (S0610)
You have the right to file a civil action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision. If you file a civil action,
you must name as the defendant in the complaint the person who is the official Agency head or
department head, identifying that person by his or her full name and official title. Failure to do so may result in the dismissal of your case in court. “Agency” or “department” means the national organization, and not the local office, facility or department in which you work. If you file a request to reconsider and also file a civil action, filing a civil action will terminate the administrative processing of your complaint .
RIGHT TO REQUEST COUNSEL (Z0815)
If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to 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:
______________________________ Carlton M. Hadden’s signature
Carlton M. Hadden, Director
Office of Federal Operations
November 6, 2023
Date | [
"Junior T. v. U.S. Postal Serv., EEOC Appeal No. 2023002297 (Apr. 27, 2023)",
"Howard v. Dep't of the Navy, EEOC Request No. 05970852 (Feb. 11, 1999)",
"Jayna A. v. U.S. Postal Serv., EEOC Appeal No. 2019000179 (Nov. 29, 2018)",
"Cristantiello v. Dep’t of the Army , EEOC Appeal No. 01992817 (Dec. 19, 2000)",
... | [
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181 | https://www.eeoc.gov/sites/default/files/decisions/2024_11_15/2024001674.pdf | 2024001674.pdf | PDF | application/pdf | 13,225 | Wilbur R,1 Complainant, v. Thomas J. Vilsack, Secretary, Department of Agriculture (Food Safety and Inspection Service), Agency. | October 12, 2023 | Appeal Number: 2024001674
Background:
From June 2015 until he was removed from service in May 2021, Complainant had worked as a
Compliance Investigator , Grade GS -12, for the Agency’s Western Region, Office of Investigation,
Enforcement, and Audit, in Albany, California. After his removal, Complainant applied for two
position vacancies with the Agency, but he was not selected.
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 2024001674
The most recent non-selection occurred on July 31, 2022, when Complainant received email
notification that he was not selected for a Supervisory Compliance Investigator , Grade GS -13,
vacancy in his former office.
On October 17, 2022, Complainant contacted an EEO Counselor. Complainant’s allegedly
discriminatory matters were not resolved though informal EEO counselling. After Complainant was non- responsive to the EEO Counselor’s efforts to schedule an interview, the EEO Counselor
emailed Complainant a notice of right to file a formal EEO complaint on November 14, 2022. On March 24, 2023, the Complainant emailed the EEO Counselor : “I did not see this email as it
was in my spam folder. I just want to confirm what my options are. In order to continue this
process, I would have file directly with USDA, Center for Civil Rights Enforcement Office of
Adjudication via email at ECD@usda.gov.”
On September 5, 2023, Complainant filed a formal EEO complaint alleging that the Agency
subjected him to discrimination on the bases of race /national origin (Hispanic /Latino and
American Indian/Alaskan Native), sex (male), color (not specified), and disability ( Veterans
Disability )
2 when:
1. On February 3, 2014, he had concerns regarding his evaluation/appraisal;
2. On February 4, 2014, he had concerns regarding his appointment/hire;
3. On February 5, 2014, he had concerns regarding training;
4. On June 15, 2015, he had concerns regarding his assignment of duties;
5. On June 15, 2018, he had concerns regarding his duty hours;
6. On January 3, 2020, he had concerns regarding his pay;
7. On May 24, 2021, he was removed from his GS -1801- 12, Compliance Investigator
position;
8. On July 31, 2022, he was not selected for an unspecified position; and
9. Between June 15, 2020 and February 13, 2014, he was subjected to various
unspecified incidents of harassment.
2 This Commission has consistently held that a claim that is based on veteran’s status or pr eference,
is beyond the jurisdictional purview of the EEO complaint process. Rowe v. Dep’t of Commerce ,
EEOC Appeal No. 0120073252 (Oct. 11, 2007). Moreover, Complainant’s parental status or political affiliation are not protected characteristics for the purpose of EEO claims. See 29 C.F.R.
§ 1614.103(a).
3 2024001674
On October 12, 2023, the Agency issued its final decision dismissing the formal EEO complaint
for failure to comply with the applicable time limit pursuant to 29 C.F.R. § 1614.107(a)(2).
Specifically, the Agency determined that Complainant’s EEO contact was untimely under 29
C.F.R. § 1614.105(a)(1) because more than 45 calendar days had passed between the latest event
believed to be discriminatory , on July 31, 2022, and Complainant’s EEO Counselor contact on
October 17, 2022. In the alternative, the Agency also dismissed the formal EEO complaint as untimely under 29
C.F.R. 1614.106(b), because Compl ainant had filed the formal complaint on September 5, 2023,
which was more than fifteen days after he acknowledged receipt of the notice of right to file on March 24, 2023.
CONTENTIONS ON APPEAL
The instant appeal followed. On appeal, Complainant declined to submit a brief arguing in support
of reversal.
The Agency opposed Complainant’s appeal contending that its dismissal was proper since both Complainant’s EEO Counselor contact as well as hi s formal EEO complaint were untimely.
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 interpretation of the law. 29 C.F.R. § 1614.405(a). The
Commission should construe the complaint in the light most favorable to the co mplainant and take
the complaint’s allegations as true. Cobb v. Dep’t of the Treasury, EEOC Request No. 05970077
(Mar . 13, 1997). Thus, all reasonable inferences that may be drawn from the c omplaint’s
allegations must be made in favor of the complainant.
Legal Analysis:
the Commission’s website.
2 2024001674
The most recent non-selection occurred on July 31, 2022, when Complainant received email
notification that he was not selected for a Supervisory Compliance Investigator , Grade GS -13,
vacancy in his former office.
On October 17, 2022, Complainant contacted an EEO Counselor. Complainant’s allegedly
discriminatory matters were not resolved though informal EEO counselling. After Complainant was non- responsive to the EEO Counselor’s efforts to schedule an interview, the EEO Counselor
emailed Complainant a notice of right to file a formal EEO complaint on November 14, 2022. On March 24, 2023, the Complainant emailed the EEO Counselor : “I did not see this email as it
was in my spam folder. I just want to confirm what my options are. In order to continue this
process, I would have file directly with USDA, Center for Civil Rights Enforcement Office of
Adjudication via email at ECD@usda.gov.”
On September 5, 2023, Complainant filed a formal EEO complaint alleging that the Agency
subjected him to discrimination on the bases of race /national origin (Hispanic /Latino and
American Indian/Alaskan Native), sex (male), color (not specified), and disability ( Veterans
Disability )
2 when:
1. On February 3, 2014, he had concerns regarding his evaluation/appraisal;
2. On February 4, 2014, he had concerns regarding his appointment/hire;
3. On February 5, 2014, he had concerns regarding training;
4. On June 15, 2015, he had concerns regarding his assignment of duties;
5. On June 15, 2018, he had concerns regarding his duty hours;
6. On January 3, 2020, he had concerns regarding his pay;
7. On May 24, 2021, he was removed from his GS -1801- 12, Compliance Investigator
position;
8. On July 31, 2022, he was not selected for an unspecified position; and
9. Between June 15, 2020 and February 13, 2014, he was subjected to various
unspecified incidents of harassment.
2 This Commission has consistently held that a claim that is based on veteran’s status or pr eference,
is beyond the jurisdictional purview of the EEO complaint process. Rowe v. Dep’t of Commerce ,
EEOC Appeal No. 0120073252 (Oct. 11, 2007). Moreover, Complainant’s parental status or political affiliation are not protected characteristics for the purpose of EEO claims. See 29 C.F.R.
§ 1614.103(a).
3 2024001674
On October 12, 2023, the Agency issued its final decision dismissing the formal EEO complaint
for failure to comply with the applicable time limit pursuant to 29 C.F.R. § 1614.107(a)(2).
Specifically, the Agency determined that Complainant’s EEO contact was untimely under 29
C.F.R. § 1614.105(a)(1) because more than 45 calendar days had passed between the latest event
believed to be discriminatory , on July 31, 2022, and Complainant’s EEO Counselor contact on
October 17, 2022. In the alternative, the Agency also dismissed the formal EEO complaint as untimely under 29
C.F.R. 1614.106(b), because Compl ainant had filed the formal complaint on September 5, 2023,
which was more than fifteen days after he acknowledged receipt of the notice of right to file on March 24, 2023.
CONTENTIONS ON APPEAL
The instant appeal followed. On appeal, Complainant declined to submit a brief arguing in support
of reversal.
The Agency opposed Complainant’s appeal contending that its dismissal was proper since both Complainant’s EEO Counselor contact as well as hi s formal EEO complaint were untimely.
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 interpretation of the law. 29 C.F.R. § 1614.405(a). The
Commission should construe the complaint in the light most favorable to the co mplainant and take
the complaint’s allegations as true. Cobb v. Dep’t of the Treasury, EEOC Request No. 05970077
(Mar . 13, 1997). Thus, all reasonable inferences that may be drawn from the c omplaint’s
allegations must be made in favor of the complainant.
ANALYSIS
In pertinent part, EEOC Regulation 29 C.F.R. § 1614.107(a)(2) states that the Agency shall dismiss a complaint for failure to comply with the applicable time limits. EEOC Regulation 29 C.F.R. § 1614.105(a)(1) provides, that complaints of discrim ination must be brought to the attention of an
EEO Counselor within 45 days of the date of the matter alleged to be discriminatory or within forty -five days of the effective date of the personnel action. Time limits are subject to waiver,
estoppel, or equi table tolling. 29 C.F.R. § 1614.604(c).
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
4 2024001674
beyond his control from contacting the EEO Counselor within the time limits, or for other reas ons
considered sufficient by the Agency or the Commission. 29 C.F.R. § 1614.105(a)(2). EEOC has
adopted a “reasonable suspicion” standard (as opposed to a “supportive fact” standard) to determine when the 45 -day limitation period is triggered. Howard v. D ep’t of the Navy, EEOC
Request No. 059700852 (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. The instant formal complaint was properly dismissed pursuant to 29 C.F.R. §§ 1614.105(a)(1) and
1614.107(a)(2), for untimely EEO Counselor contact. The latest alleged discriminatory event
occurred on July 31, 2022, but Complainant did not initiate contact with an EEO Counselor until
October 17, 2022, which is beyond the forty -five-day limitation period. The Agency maintained
that Complainant had received No Fear Act training in 2019 which made him aware of the time limit for contacting an EEO Counselor . Furthermore, Complainant stated that he contacted a
manager about his non- selection who had advised him that he could challenge the non- selection
though the EEO process. Complainant has offered no explanation regarding why he waited
approximately 78 days to contact an EEO C ounselor. On appeal, Complainant has presented
neither persuasive arguments nor evidence warranting an extension of the time limit for initiating
EEO Counselor contact. | Wilbur R,1
Complainant,
v.
Thomas J. Vilsack,
Secretary,
Department of Agriculture
(Food Safety and Inspection Service),
Agency.
Appeal No. 2024001674
Agency No. FSIS-2023-00026
DECISION
Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's final decision dated October 12, 2023, 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. For the reasons that are discussed below, we affirm the Agency’s final decision dismissing the formal com plaint.
ISSUE PRESENTED
Whether the Agency’s final decision properly dismissed Complainant’s formal complaint for failure comply with time limits pursuant to 29 C.F.R. § 1614.107(a)(2).
BACKGROUND
From June 2015 until he was removed from service in May 2021, Complainant had worked as a
Compliance Investigator , Grade GS -12, for the Agency’s Western Region, Office of Investigation,
Enforcement, and Audit, in Albany, California. After his removal, Complainant applied for two
position vacancies with the Agency, but he was not selected.
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 2024001674
The most recent non-selection occurred on July 31, 2022, when Complainant received email
notification that he was not selected for a Supervisory Compliance Investigator , Grade GS -13,
vacancy in his former office.
On October 17, 2022, Complainant contacted an EEO Counselor. Complainant’s allegedly
discriminatory matters were not resolved though informal EEO counselling. After Complainant was non- responsive to the EEO Counselor’s efforts to schedule an interview, the EEO Counselor
emailed Complainant a notice of right to file a formal EEO complaint on November 14, 2022. On March 24, 2023, the Complainant emailed the EEO Counselor : “I did not see this email as it
was in my spam folder. I just want to confirm what my options are. In order to continue this
process, I would have file directly with USDA, Center for Civil Rights Enforcement Office of
Adjudication via email at ECD@usda.gov.”
On September 5, 2023, Complainant filed a formal EEO complaint alleging that the Agency
subjected him to discrimination on the bases of race /national origin (Hispanic /Latino and
American Indian/Alaskan Native), sex (male), color (not specified), and disability ( Veterans
Disability )
2 when:
1. On February 3, 2014, he had concerns regarding his evaluation/appraisal;
2. On February 4, 2014, he had concerns regarding his appointment/hire;
3. On February 5, 2014, he had concerns regarding training;
4. On June 15, 2015, he had concerns regarding his assignment of duties;
5. On June 15, 2018, he had concerns regarding his duty hours;
6. On January 3, 2020, he had concerns regarding his pay;
7. On May 24, 2021, he was removed from his GS -1801- 12, Compliance Investigator
position;
8. On July 31, 2022, he was not selected for an unspecified position; and
9. Between June 15, 2020 and February 13, 2014, he was subjected to various
unspecified incidents of harassment.
2 This Commission has consistently held that a claim that is based on veteran’s status or pr eference,
is beyond the jurisdictional purview of the EEO complaint process. Rowe v. Dep’t of Commerce ,
EEOC Appeal No. 0120073252 (Oct. 11, 2007). Moreover, Complainant’s parental status or political affiliation are not protected characteristics for the purpose of EEO claims. See 29 C.F.R.
§ 1614.103(a).
3 2024001674
On October 12, 2023, the Agency issued its final decision dismissing the formal EEO complaint
for failure to comply with the applicable time limit pursuant to 29 C.F.R. § 1614.107(a)(2).
Specifically, the Agency determined that Complainant’s EEO contact was untimely under 29
C.F.R. § 1614.105(a)(1) because more than 45 calendar days had passed between the latest event
believed to be discriminatory , on July 31, 2022, and Complainant’s EEO Counselor contact on
October 17, 2022. In the alternative, the Agency also dismissed the formal EEO complaint as untimely under 29
C.F.R. 1614.106(b), because Compl ainant had filed the formal complaint on September 5, 2023,
which was more than fifteen days after he acknowledged receipt of the notice of right to file on March 24, 2023.
CONTENTIONS ON APPEAL
The instant appeal followed. On appeal, Complainant declined to submit a brief arguing in support
of reversal.
The Agency opposed Complainant’s appeal contending that its dismissal was proper since both Complainant’s EEO Counselor contact as well as hi s formal EEO complaint were untimely.
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 interpretation of the law. 29 C.F.R. § 1614.405(a). The
Commission should construe the complaint in the light most favorable to the co mplainant and take
the complaint’s allegations as true. Cobb v. Dep’t of the Treasury, EEOC Request No. 05970077
(Mar . 13, 1997). Thus, all reasonable inferences that may be drawn from the c omplaint’s
allegations must be made in favor of the complainant.
ANALYSIS
In pertinent part, EEOC Regulation 29 C.F.R. § 1614.107(a)(2) states that the Agency shall dismiss a complaint for failure to comply with the applicable time limits. EEOC Regulation 29 C.F.R. § 1614.105(a)(1) provides, that complaints of discrim ination must be brought to the attention of an
EEO Counselor within 45 days of the date of the matter alleged to be discriminatory or within forty -five days of the effective date of the personnel action. Time limits are subject to waiver,
estoppel, or equi table tolling. 29 C.F.R. § 1614.604(c).
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
4 2024001674
beyond his control from contacting the EEO Counselor within the time limits, or for other reas ons
considered sufficient by the Agency or the Commission. 29 C.F.R. § 1614.105(a)(2). EEOC has
adopted a “reasonable suspicion” standard (as opposed to a “supportive fact” standard) to determine when the 45 -day limitation period is triggered. Howard v. D ep’t of the Navy, EEOC
Request No. 059700852 (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. The instant formal complaint was properly dismissed pursuant to 29 C.F.R. §§ 1614.105(a)(1) and
1614.107(a)(2), for untimely EEO Counselor contact. The latest alleged discriminatory event
occurred on July 31, 2022, but Complainant did not initiate contact with an EEO Counselor until
October 17, 2022, which is beyond the forty -five-day limitation period. The Agency maintained
that Complainant had received No Fear Act training in 2019 which made him aware of the time limit for contacting an EEO Counselor . Furthermore, Complainant stated that he contacted a
manager about his non- selection who had advised him that he could challenge the non- selection
though the EEO process. Complainant has offered no explanation regarding why he waited
approximately 78 days to contact an EEO C ounselor. On appeal, Complainant has presented
neither persuasive arguments nor evidence warranting an extension of the time limit for initiating
EEO Counselor contact.
CONCLUSION
The Agency's final decision dismissing Complainant's complaint for untimely EEO Counselor
contact 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 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 .
3 Because we affirm the dismissal for the reason discussed above, we will not address alternative
dismissal grounds.
5 2024001674
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
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
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 right to file a civil action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision. If you file a civil action, you must
name as the defendant in the complaint the person who is the official Agency head or department head, identifying that person by their full name and official title. Failure to do so may result in the dismissal of your case in court. “Agency” or “department” means the national organization, and not the 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. 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.
6 2024001674
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 ty pes 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 11, 2024
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182 | https://www.eeoc.gov/sites/default/files/decisions/2020_12_07/2019004826.pdf | 2019004826.pdf | PDF | application/pdf | 15,679 | U.S. EQUAL EMPLOYMENT OPPORTU NITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Gaylord I.,1 Complainant, v. Sonny Perdue, Secretary, Department of Agriculture (Forest Service), Agency. | June 10, 2019 | Appeal Number: 2019004826
Background:
At the time of events giving rise to this complaint, Complainant w as employed by the Agency as
a Residential Living Manager, GS -0186- 11 at the Lyndon B. Johnson Civilian Conversation
Center (CCC) in Franklin, North Carolina. On July 12, 2017, Complainant filed an EEO complaint alleging that the Agency discriminated against him:
1. When he was harassed by his first line supervisor (S1 – CCC Director - African -American,
age 46) , including but not limited to:
Harassment b ased on his race (Caucasian and Native American ), age (46) and reprisal for prior
EEO activity when:
a. At a meeting on February 16, 2016, S1 told S1’s management team that if they
contacted their second line supervisor (S2) about leave matters they will be
disciplined for failure to follow the chain of command;
Based on reprisal when:
b. From about June 2016 to January 5, 2017, S2 attempted to negatively impact his
detail opportunity as the acting CCC Director ;
c. On February 27, 2017, at a management team meeting, S1 directed him to ensure
all window blinds in the Duty Office and female dormitories were opened at the
same level and/or all closed, and referenced him as "The Blind Police ”;
d. On March 7, 2017, S1 dismissed his recommendation for the staff to participate in
Conflict Management Prevention;
e. On April 20 and 21, 2017, during an inspection of the Residential/Living area , S1
said to the inspection team , which included him, that he was citing his department
with a safety violation because two bottles of cleaning chemical labels were not
facing forward in a storage closet , albeit this is not a violation;
f. On or about April 25, 2017, S1 sent him an email listing various job
announcements;
g. On April 30, 2017, S1 sent him an email rebuking him for sending a mass email to
his subordinate s taff;
h. On May 5, 2017, S1 shared his personal performance information with another
staff employee; and
i. On May 12, 2017, S1 spent an excessive amount of time during his mid -year
performance discussion;
2. On May 21, 2017, S1 issued to him a "Schedule Change" letter , effective June 12, 2017;
and
3. On May 24, 2017, S1 denied his request to attend the New Outcome Measurement System
Retention training.2
The Agency investigated the EEO complaint, and Complainant requested a hearing before an
Administrative Judge (AJ) with the EEOC. He later withdrew his hearing request . The Agency
then issued a FAD pursuant to 29 C.F.R. § 1614.110(b). It found no discrimination.
On May 5, 2017, Complainant emailed S2 that from June 2016 to the present S1 has been harassing
him, cited more than a few of the same incidents recounted above , and speculat ed that S 1 retaliat es
against subordinates who express good idea s that don’t appear to be generated by S1. ROI, Ex.
10.b.3.10, at 50, Bates No. 293. S2 opened a Management harassment Fact-Finding Inquiry FS-
1700- 0007. On June 20, 2017, the Inquiry Official issued a report finding that more than a few of
incidents Complainant listed occurred . Based on the Fact Finding report, o n September 20, 2017,
S2 proposed suspending S1 for 10 calendar days for (1) conduct unbecoming of a federal
supervisor, and (2) failure to follow policy. In support of the first charge, S2 cited incidents 1.d,
1.h, and other s not recounted above, and in support of the second charge specified that S1 did not
assign Complainant to attend safety committee meetings in violation of the Agency’s Policy &
Requirements Handbook.
In his EEO case, Complainant identified his May 5, 2017 report to S2 as the activity for which he was retaliated against.
In its FAD, the Agency found that Complainant did not establish a prima facie case of reprisal discrimination because his May 5, 2017 report to S2 was not protected EEO activity , and in any
event, many of his listed incidents pre-dated this. Regarding incident 2, the Agency found that
while the schedule change was effective June 12, 2017, S1 notified Complainant thereof on May
12, 2019, prior to him initiating EEO counseling on May 14, 2017. See ROI Ex. 7, at 8 – 9, Bates
Nos. 160 - 161 (Complainant stated that at a meeting on May 12, 2017, S1 notified him of the
schedule change) . Regarding incident 3, the Agency found that Complainant did not make out a
prima facie case of reprisal discrimination because S1 did not learn of Complainant’s EEO activity befor e then . The instant appeal followed.
On appeal, Complainant alleges he was subjected to retaliatory harassment by S1 . He does not
address the factual findings and legal analysis in the FAD, as recounted in the above paragraph.
2 Complainant alleged discrimination based on his race, age and reprisal for his entire EEO
complaint. In his affidavit, except for incident 1.a, Complainant explicitly stated he was not
alleging race and age discrimination.
3 The record does not reflect what action the deciding official took on the proposed suspension.
In opposition to the appeal, the Agency argues that the FAD should be affirmed. Regarding
incident 1.a, it argues Complainant failed to establish a prima facie case of race discrimination
because he was not aggrieved since S1 allegedly threatened everyone in the meeting about
contacting S2 . It also argues even if Complainant established prima facie cases of reprisal
discrimination regarding issues 2 and 3, Complainant did not show that management’s articulated,
nondiscriminatory reasons for these actions were pretextual. | U.S. EQUAL EMPLOYMENT OPPORTU NITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Gaylord I.,1
Complainant,
v.
Sonny Perdue,
Secretary,
Department of Agriculture
(Forest Service),
Agency.
Appeal No. 2019004826
Hearing No. 430-2019-00l50X
Agency No. FS-2017-00619
DECISION
On June 10, 2019, Complainant filed an appeal with the Equal Employment Opportunity
Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from a final Agency decision (FAD) dated May 3, 2019, 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.
BACKGROUND
At the time of events giving rise to this complaint, Complainant w as employed by the Agency as
a Residential Living Manager, GS -0186- 11 at the Lyndon B. Johnson Civilian Conversation
Center (CCC) in Franklin, North Carolina. On July 12, 2017, Complainant filed an EEO complaint alleging that the Agency discriminated against him:
1. When he was harassed by his first line supervisor (S1 – CCC Director - African -American,
age 46) , including but not limited to:
Harassment b ased on his race (Caucasian and Native American ), age (46) and reprisal for prior
EEO activity when:
a. At a meeting on February 16, 2016, S1 told S1’s management team that if they
contacted their second line supervisor (S2) about leave matters they will be
disciplined for failure to follow the chain of command;
Based on reprisal when:
b. From about June 2016 to January 5, 2017, S2 attempted to negatively impact his
detail opportunity as the acting CCC Director ;
c. On February 27, 2017, at a management team meeting, S1 directed him to ensure
all window blinds in the Duty Office and female dormitories were opened at the
same level and/or all closed, and referenced him as "The Blind Police ”;
d. On March 7, 2017, S1 dismissed his recommendation for the staff to participate in
Conflict Management Prevention;
e. On April 20 and 21, 2017, during an inspection of the Residential/Living area , S1
said to the inspection team , which included him, that he was citing his department
with a safety violation because two bottles of cleaning chemical labels were not
facing forward in a storage closet , albeit this is not a violation;
f. On or about April 25, 2017, S1 sent him an email listing various job
announcements;
g. On April 30, 2017, S1 sent him an email rebuking him for sending a mass email to
his subordinate s taff;
h. On May 5, 2017, S1 shared his personal performance information with another
staff employee; and
i. On May 12, 2017, S1 spent an excessive amount of time during his mid -year
performance discussion;
2. On May 21, 2017, S1 issued to him a "Schedule Change" letter , effective June 12, 2017;
and
3. On May 24, 2017, S1 denied his request to attend the New Outcome Measurement System
Retention training.2
The Agency investigated the EEO complaint, and Complainant requested a hearing before an
Administrative Judge (AJ) with the EEOC. He later withdrew his hearing request . The Agency
then issued a FAD pursuant to 29 C.F.R. § 1614.110(b). It found no discrimination.
On May 5, 2017, Complainant emailed S2 that from June 2016 to the present S1 has been harassing
him, cited more than a few of the same incidents recounted above , and speculat ed that S 1 retaliat es
against subordinates who express good idea s that don’t appear to be generated by S1. ROI, Ex.
10.b.3.10, at 50, Bates No. 293. S2 opened a Management harassment Fact-Finding Inquiry FS-
1700- 0007. On June 20, 2017, the Inquiry Official issued a report finding that more than a few of
incidents Complainant listed occurred . Based on the Fact Finding report, o n September 20, 2017,
S2 proposed suspending S1 for 10 calendar days for (1) conduct unbecoming of a federal
supervisor, and (2) failure to follow policy. In support of the first charge, S2 cited incidents 1.d,
1.h, and other s not recounted above, and in support of the second charge specified that S1 did not
assign Complainant to attend safety committee meetings in violation of the Agency’s Policy &
Requirements Handbook.
In his EEO case, Complainant identified his May 5, 2017 report to S2 as the activity for which he was retaliated against.
In its FAD, the Agency found that Complainant did not establish a prima facie case of reprisal discrimination because his May 5, 2017 report to S2 was not protected EEO activity , and in any
event, many of his listed incidents pre-dated this. Regarding incident 2, the Agency found that
while the schedule change was effective June 12, 2017, S1 notified Complainant thereof on May
12, 2019, prior to him initiating EEO counseling on May 14, 2017. See ROI Ex. 7, at 8 – 9, Bates
Nos. 160 - 161 (Complainant stated that at a meeting on May 12, 2017, S1 notified him of the
schedule change) . Regarding incident 3, the Agency found that Complainant did not make out a
prima facie case of reprisal discrimination because S1 did not learn of Complainant’s EEO activity befor e then . The instant appeal followed.
On appeal, Complainant alleges he was subjected to retaliatory harassment by S1 . He does not
address the factual findings and legal analysis in the FAD, as recounted in the above paragraph.
2 Complainant alleged discrimination based on his race, age and reprisal for his entire EEO
complaint. In his affidavit, except for incident 1.a, Complainant explicitly stated he was not
alleging race and age discrimination.
3 The record does not reflect what action the deciding official took on the proposed suspension.
In opposition to the appeal, the Agency argues that the FAD should be affirmed. Regarding
incident 1.a, it argues Complainant failed to establish a prima facie case of race discrimination
because he was not aggrieved since S1 allegedly threatened everyone in the meeting about
contacting S2 . It also argues even if Complainant established prima facie cases of reprisal
discrimination regarding issues 2 and 3, Complainant did not show that management’s articulated,
nondiscriminatory reasons for these actions were pretextual.
ANALYSIS AND FINDINGS
Harassment is actionable only if the incidents to which Complainant has been subjected were “sufficiently severe or pervasive to alter the conditions of Complainant’s employment and create an abusive working environment. Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993). To
establish a prima facie case of harassment, Complainant must show that (1) he is a member of a statutorily protected class and/or was engaged in prior EEO activity; (2) he was subjected to unwelcome verbal or physical conduct related to her membership in that class and/or her prior
EEO activity; (3) the harassment complained of was based on her membership in that class and/or her 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.
To establish a prima facie case of reprisal, the complainant must show that : 1) he engaged in prior
protected activity; 2) the responsible agency officials were aware of the protected activity; 3) he subsequently was subjected to adverse treatment; and, 4) the adverse action followed the protected activity within such a period of time that a retaliatory motive may be inferred. Murphy v. United
States Postal Service, EEOC Appeal No. 01965398 (October 16, 1998).
The Management Fact-Finding report package, which includes Complainant’s May 5, 2017 report,
shows that within that process Complainant did not contend nor infer that S1’s harassment was
based on any of his protected EEO groups like race , age, or prior EEO activity . This is confirmed
by S2 in her statement. In its FAD the Agency found that Complainant’s first EEO activity was on
May 14, 2017, when he contacted an EEO counselor.
4 Complainant does not contest this on appeal.
We agree with the Agency that Complainant did not make out a prima facie case of reprisal
discrimination regarding incidents that occurred or were decided upon prior to May 14, 2017, i.e.,
incidents 1.a – i, and 2.
Regarding incident 1.a, Complainant failed to prove harassment based on his age and race because he contends S1 threated everyone at the meeting about contacting S2 . The alleged threat was not
specifically directed at Complainant , i.e., he has not established a nexus between his pro tected
groups and the alleged threat.
4 In his EEO affidavit, at times Complainant refers to retaliation for an “EEO complaint”, but does
not give any information thereon, e.g., on any allegations therein, when the complaint was brought,
who it was against, what part of the EEO process it was ever in, and so forth.
Regarding incident 3 (denial of training on May 24, 2017), the record does not reflect whether S1
was aware of Complainant’s EEO activity by then, i.e., while the EEO counselor reached out to
S1 and interviewed him after Complainant initiated EEO counseling on May 14, 2017, the record
does not show when.
This training was 45 minutes away from the CCC. S1 stated that out of seven managers, he chose
four, and one supervisor for the training . S2 stated that training space was limited, and there were
multiple similar trainings later that Complainant had an opportunity to attend. S1’s subordinate
Academic Manager, GS -1710- 11 (Coworker 1) stated that out of six C CC department managers ,
S1 sent four to the training. While S1 indicated he had no independent recollection of why he did not choose Complainant, as referenced in the Agency’s opposition brief Complainant stated he
was told by S1 that he wanted him in charge as Acting CCC Director while S1 was away . ROI,
Ex. 7, at 4, Bates No. 156. This vitiates against finding there is a nexus between Complainant’s
EEO activity and S1 not choosing him for the training.
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 w ritten 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 poli cies, 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.
5 In opposition to the appeal, the Agency argues that Complainant’s EEO complaint should be
dismissed because it was untimely filed. We disagree because in EEOC Ap peal No. 0120172673
(Jun. 26, 2018), the Commission reversed the Agency’s dismissal of his EEO complaint on this
ground for not meeting i ts burden of proof. In opposition to Complainant’s appeal, the Agency
submits a postal domestic return receipt signed b y Complainant evidencing he received his notice
of right to file his EEO complaint on June 14, 2017, which proves he untimely filed it. Our
determination in EEOC Appeal No. 0120172673, however, was final, since neither party filed a request for reconsidera tion. The Agency also argues that Complainant failed to timely initiate EEO
counseling on incident 1.a. As we have found no discrimination, we need not address this argument.
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 peri od. 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 t hese types of requests.
Such requests do not alter the time limits for filing a civil action (please read the paragraph titled
Complainant’s Right to File a Civil Action for the specific time limits).
FOR THE COMMISSION:
______________________________ Carlton M. Hadden’s signature
Carlton M. Hadden, Director
Office of Federal Operations
August 10, 2020
Date | [
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183 | https://www.eeoc.gov/sites/default/files/decisions/2023_04_21/2022004242.pdf | 2022004242.pdf | PDF | application/pdf | 15,346 | Johana S., Complainant, v. Frank Kendall, Secretary, Department of the Air Force, Agency. | July 7, 2022 | Appeal Number: 2022004242
Background:
During the period at issue, Complainant provided services to the Agency as a Cyber Security
Manager through a contract that the Agency entered into with Raytheon (contractor). On June 3, 2022, Complainant filed a formal complaint alleging that the Agency subjected her to discrimination based on race (African American) . In its final decision, the Agency framed
Complainant’s claims in the following fashion:
Was Co mplainant discriminated ag ainst on the basis of race (African American)
and subjected to harassment, when:
a) In or around June 2021, the Agency, by and through the Air Force Office
of Special Investigations (AFOSI) Special Projects (SP) Det 8’s representat ion removed Complainant’s l ocal approval authority privileges.
b) On or around August 10, 2021, the Agency, by and through [a named
Special Agen t-in-Charge] issued Complainant a Special Access Program
Suspension Memorandum for alleged multiple security violations, despite Complainant not being aware nor informed of any security violations .
c) On or around August 12, 2021, [a named Special Agent -in-Charge]
informed Complainant that the AFOSI’s investigation had been completed and Complainant’s Spec ial Access Program access had been permanently
suspended. [The Special Agent -in-Charge] further stated that he was
aware that Complainant had not been responsible for the violations that formed the basis for the suspension, but the actions w ould continue .
d) On or around September 15, 2021, the A FOSI [named Program Security
Representative] improperly raised the classification of Complainant’s appeal regarding the Special Access Program access to a higher classification level than warranted for a second time an d issued
Complainant a Security Violation, despite later reducing the classification level to unsecured.
e) Beginning on or about October 4, 2021 and continuing through May 16, 2022, due to [named Special Agent in Charge] suspending her Special Program acces s, Complainant’s record was updated to reflect that s he was
removed from her managerial position and was no longer permitted to work on Air Force assignments .
f) In or around December 2021, the Department of Defense Inspector
General Attorney informed Compla inant that AFOSI had improperly
withhe ld her appeal documentation resulting in its untimely submission.
The Agency dismissed the formal complaint , in its entirety , for failure to state a claim reasoning ,
“Complainant is not considered an employee of the Agency and was employed by Raytheon…Bot h Complainant and an Agency Responding Management Official indicated
Complainant’s actual employer (Raytheon) controlled Complainant’s work schedule, assignments, and hour s, and pays her salary and benefits.”
The Agency also dismissed the formal complai nt, in its entirety , on the alternate grounds of
untimely EEO Counselor contact. In addition, the Agency dismissed claim (e) for not being
brought to the attention of the EEO Counselor and not being like or related to a matter brought to the attention of the EEO Counselor. Moreover, the Agency found that each of the claims involving the Special Access Program should be dismissed as a collateral attack on an administrative process.
The instant appeal followed. On appeal, Complainant, through her attorney, requests that we reverse the Agency’s final decision dismissing her complaint. Regarding the Agency’s dismissal
that Complainant was not an Agency employee, Complainant argues that the Agency had
exclusive control over the means and manner of her performance of her job duties when it stated she was unable to perform her tasks under the previous Assured File Transfer procedures. Regarding the Agency’s dismissal for untimely EEO Counselor contact, the Agency argues that
she “informed an EEO individual of her intent to file a complaint against the Agency on
February 8, 2022.” Complainant further asserts that she is raising a hostile work environment claim and that, therefore , the entire claim is timely if one incident comprising the claim is timely.
Complainant further asserts that these matters are not a collateral attack on an administrative process because she is not questioning the findings of the Special Access Program appeal process. In response, the Agency requests that we affirm its final decision dismissing Compl ainant’s
complaint. Regarding the dismissal for untimely EEO Counselor contact, the Agency asserts that Complainant did not initiate EEO contact until February 22, 2022. The Agency reasoned that on November 30, 2021, Complainant was informed via the DoD Hotline Response that any discrimination complaint must be routed through the Agency’s EEO Office. Thus, the Agency set forth that Complainant was aware in November 2021, that she could contact the Agency’s EEO Office, but she chose instead to wait until February 22, 2022, to do so.
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-f ive
(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 suspe cts 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 ti me 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 conta cting the Counselor within the time limits, or for other reasons
considered sufficient by the agency or the Commission.
We find that the Agency properly dismissed Complainant’s complaint, in its entirety, for untimely EEO Counselor contact. We find that Complainant initiated EEO Contact on February
22, 2022.
2 The most recent alleged incident comprising Complainant’s host ile work
environment claim occurred in December 2021 (incident (f)). Thus, even using the date of December 31, 2021 for this incident, Complainant’s February 22, 2022 EEO contact is untimely.
We also concur with the Agency’s response brief that incident (e), Complainant being removed
from providing services to the Air Force and from her management position with the contractor were discr ete acts rather than a continuing violation. Thus, this incident which occurred on
October 4, 2021, more than 45 days be fore her EEO contact on February 22, 2022, is untimely .
Complainant alleges that h er hostile work environment claim is timely becaus e she initiated EEO
contact on February 8, 2022 to an individual logically connected to the EEO process, we
disagree. Th e record contains a signed statement from Complainant dated March 7, 2022.
Therein, Complainant stated that she made a complaint with the U.S. Equal Opportunity Employment Commission (EEOC) on November 29, 2021 and was interviewed by the EEOC on
February 8, 2022. She further asserted that she was not aware she needed to contact the
Agency’s EEO Office until February 22, 2022, when EEOC informed her of such. Complainant
also submits, on appeal, an affidavit. Therein, she asserts that she was informed on February 8, 2021, during an interview , that she needed to contact a “separate [Agency] EEO office” for a
complaint against the Agency. Complainant, in this affidavit, further asserts that she was not
aware that the Agency had a separate EEO Office until t his time. The record , however, does not
support this assertion. The record contains a response from the DoD Office of Inspector Gener al
(OIG) Hotline dated November 30, 2021, after Complainant submitted a complaint to DoD OIG .
Therein, the response indicated that discrimination complaints mu st be filed with “ your Agency
or service’s EEO or EO Office within the timeframes specified in E EO guidelines or you may
forfeit your rights…” (emphasis added). This response further provided a link to the website for DoD’s Office of Management and Equal Opportunity and a link to the website for the EEOC for general information on the EEO process.
3 Based on the foregoing, we find that as of November
29, 2021, Complainant was aware that to initiate an EEO complaint against the Air Force, she should contact the Agency’s EEO Office to initiate a complaint. Based on the foregoing, we do not find that Complainant presented sufficient justification to extend the applicable time limit.
2 The record contains a Contact Form indicating Complainant’s initial contact with the Agenc y’s
EEO Office occurred on February 22, 2022.
3 While The DoD OIG Hotline response provided a link to the website for the EEOC for general
information on the EEO process, the OIG Hotline response clearly set forth that discrimination complaints against the Agency must be filed with the Agency’s EEO Office (it did not set forth that EEO c omplaints against the Agency could be filed with the EEOC ). | Johana S.,
Complainant,
v.
Frank Kendall,
Secretary,
Department of the Air Force,
Agency.
Appeal No. 2022004242
Agency No. 9W4W2200331
DECISION
Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC
or Commission) from the Agency's final decision dated July 7, 2022, dismissing a formal
complaint alleging unlawful employment discrimination in violation of Title VII of the Civil
Rights Act of 1964 (Title VII), as amended, 42 U.S.C. § 2000e et seq.
BACKGROUND
During the period at issue, Complainant provided services to the Agency as a Cyber Security
Manager through a contract that the Agency entered into with Raytheon (contractor). On June 3, 2022, Complainant filed a formal complaint alleging that the Agency subjected her to discrimination based on race (African American) . In its final decision, the Agency framed
Complainant’s claims in the following fashion:
Was Co mplainant discriminated ag ainst on the basis of race (African American)
and subjected to harassment, when:
a) In or around June 2021, the Agency, by and through the Air Force Office
of Special Investigations (AFOSI) Special Projects (SP) Det 8’s representat ion removed Complainant’s l ocal approval authority privileges.
b) On or around August 10, 2021, the Agency, by and through [a named
Special Agen t-in-Charge] issued Complainant a Special Access Program
Suspension Memorandum for alleged multiple security violations, despite Complainant not being aware nor informed of any security violations .
c) On or around August 12, 2021, [a named Special Agent -in-Charge]
informed Complainant that the AFOSI’s investigation had been completed and Complainant’s Spec ial Access Program access had been permanently
suspended. [The Special Agent -in-Charge] further stated that he was
aware that Complainant had not been responsible for the violations that formed the basis for the suspension, but the actions w ould continue .
d) On or around September 15, 2021, the A FOSI [named Program Security
Representative] improperly raised the classification of Complainant’s appeal regarding the Special Access Program access to a higher classification level than warranted for a second time an d issued
Complainant a Security Violation, despite later reducing the classification level to unsecured.
e) Beginning on or about October 4, 2021 and continuing through May 16, 2022, due to [named Special Agent in Charge] suspending her Special Program acces s, Complainant’s record was updated to reflect that s he was
removed from her managerial position and was no longer permitted to work on Air Force assignments .
f) In or around December 2021, the Department of Defense Inspector
General Attorney informed Compla inant that AFOSI had improperly
withhe ld her appeal documentation resulting in its untimely submission.
The Agency dismissed the formal complaint , in its entirety , for failure to state a claim reasoning ,
“Complainant is not considered an employee of the Agency and was employed by Raytheon…Bot h Complainant and an Agency Responding Management Official indicated
Complainant’s actual employer (Raytheon) controlled Complainant’s work schedule, assignments, and hour s, and pays her salary and benefits.”
The Agency also dismissed the formal complai nt, in its entirety , on the alternate grounds of
untimely EEO Counselor contact. In addition, the Agency dismissed claim (e) for not being
brought to the attention of the EEO Counselor and not being like or related to a matter brought to the attention of the EEO Counselor. Moreover, the Agency found that each of the claims involving the Special Access Program should be dismissed as a collateral attack on an administrative process.
The instant appeal followed. On appeal, Complainant, through her attorney, requests that we reverse the Agency’s final decision dismissing her complaint. Regarding the Agency’s dismissal
that Complainant was not an Agency employee, Complainant argues that the Agency had
exclusive control over the means and manner of her performance of her job duties when it stated she was unable to perform her tasks under the previous Assured File Transfer procedures. Regarding the Agency’s dismissal for untimely EEO Counselor contact, the Agency argues that
she “informed an EEO individual of her intent to file a complaint against the Agency on
February 8, 2022.” Complainant further asserts that she is raising a hostile work environment claim and that, therefore , the entire claim is timely if one incident comprising the claim is timely.
Complainant further asserts that these matters are not a collateral attack on an administrative process because she is not questioning the findings of the Special Access Program appeal process. In response, the Agency requests that we affirm its final decision dismissing Compl ainant’s
complaint. Regarding the dismissal for untimely EEO Counselor contact, the Agency asserts that Complainant did not initiate EEO contact until February 22, 2022. The Agency reasoned that on November 30, 2021, Complainant was informed via the DoD Hotline Response that any discrimination complaint must be routed through the Agency’s EEO Office. Thus, the Agency set forth that Complainant was aware in November 2021, that she could contact the Agency’s EEO Office, but she chose instead to wait until February 22, 2022, to do so.
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-f ive
(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 suspe cts 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 ti me 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 conta cting the Counselor within the time limits, or for other reasons
considered sufficient by the agency or the Commission.
We find that the Agency properly dismissed Complainant’s complaint, in its entirety, for untimely EEO Counselor contact. We find that Complainant initiated EEO Contact on February
22, 2022.
2 The most recent alleged incident comprising Complainant’s host ile work
environment claim occurred in December 2021 (incident (f)). Thus, even using the date of December 31, 2021 for this incident, Complainant’s February 22, 2022 EEO contact is untimely.
We also concur with the Agency’s response brief that incident (e), Complainant being removed
from providing services to the Air Force and from her management position with the contractor were discr ete acts rather than a continuing violation. Thus, this incident which occurred on
October 4, 2021, more than 45 days be fore her EEO contact on February 22, 2022, is untimely .
Complainant alleges that h er hostile work environment claim is timely becaus e she initiated EEO
contact on February 8, 2022 to an individual logically connected to the EEO process, we
disagree. Th e record contains a signed statement from Complainant dated March 7, 2022.
Therein, Complainant stated that she made a complaint with the U.S. Equal Opportunity Employment Commission (EEOC) on November 29, 2021 and was interviewed by the EEOC on
February 8, 2022. She further asserted that she was not aware she needed to contact the
Agency’s EEO Office until February 22, 2022, when EEOC informed her of such. Complainant
also submits, on appeal, an affidavit. Therein, she asserts that she was informed on February 8, 2021, during an interview , that she needed to contact a “separate [Agency] EEO office” for a
complaint against the Agency. Complainant, in this affidavit, further asserts that she was not
aware that the Agency had a separate EEO Office until t his time. The record , however, does not
support this assertion. The record contains a response from the DoD Office of Inspector Gener al
(OIG) Hotline dated November 30, 2021, after Complainant submitted a complaint to DoD OIG .
Therein, the response indicated that discrimination complaints mu st be filed with “ your Agency
or service’s EEO or EO Office within the timeframes specified in E EO guidelines or you may
forfeit your rights…” (emphasis added). This response further provided a link to the website for DoD’s Office of Management and Equal Opportunity and a link to the website for the EEOC for general information on the EEO process.
3 Based on the foregoing, we find that as of November
29, 2021, Complainant was aware that to initiate an EEO complaint against the Air Force, she should contact the Agency’s EEO Office to initiate a complaint. Based on the foregoing, we do not find that Complainant presented sufficient justification to extend the applicable time limit.
2 The record contains a Contact Form indicating Complainant’s initial contact with the Agenc y’s
EEO Office occurred on February 22, 2022.
3 While The DoD OIG Hotline response provided a link to the website for the EEOC for general
information on the EEO process, the OIG Hotline response clearly set forth that discrimination complaints against the Agency must be filed with the Agency’s EEO Office (it did not set forth that EEO c omplaints against the Agency could be filed with the EEOC ).
Accordingly, for the reason set forth herein, we AFFIRM the Agency’s final decision dismissing
Complainant’s complaint.4
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERAT ION (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 err oneous 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 el ects 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 p arty 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 re gular 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.
4Because we affirm the Agency’s dismissal for the reason set forth herein, we need not address
the Agency’s alternate grounds for dismissal.
Failur e 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 w ith 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 t he 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, fi ling a civil action will terminate the
administrative processing of your complaint .
RIGHT TO REQUEST COUNSEL (Z0815)
If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of
court costs or appointment of an attorney directly to the court, not the Commission. The
court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant’s Right to File a Civil Action for the specific time limits).
FOR THE COMMISSION:
______________________________ Carlton M. Hadden’s signature
Carlton M. Hadden, Director Office of Federal Operations
January 26, 2023
Date | [
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"29 C.F.R. § 1614.604",
"29 C.F.R. § 1614.403(g)",
"29 C.F.R. § 1614.604(c)",
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184 | https://www.eeoc.gov/sites/default/files/migrated_files/decisions/01a34748.txt | 01a34748.txt | TXT | text/plain | 17,079 | 2003 . Elaine L. Barrios, Complainant, v. Hansford T. Johnson, Acting Secretary, Department of the Navy, Agency. | July 7, 2003 | Appeal Number: 01A34748
Case Facts:
Complainant filed a timely appeal with this Commission from the
final agency decision dated July 7, 2003, dismissing her complaint of
unlawful employment discrimination in violation of Title VII of the Civil
Rights Act of 1964 (Title VII), as amended, 42 U.S.C. § 2000e et seq.
and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act),
as amended, 29 U.S.C. § 791 et seq.
Complainant initiated EEO Counselor contact on April 30, 2003. Informal
efforts to resolve complainant's concerns were unsuccessful. Complainant
filed a formal EEO complaint dated June 5, 2003, and alleged that she was
subjected to discrimination on the bases of national origin, disability,
and in reprisal for prior EEO activity.
In its final decision, the agency stated complainant's complaint was
comprised of the following four claims<1>:
[Complainant] was moved from [her] position without paperwork and then
finally detailed to a position which is being abolished. The position
[complainant] was moved to has no potential for advancement or training.
The position [complainant] was moved to is normally a higher graded
position, yet [complainant] has been paid at her regular grade.
There was a failure to upgrade complainant from a GS-6 to a GS-7,
although other employees who were not disabled received the promotion.
Other employees received a cash award and [complainant] did not.
On June 3, 2003, [complainant's] workers' compensation claim was rejected
for [her] work related injury.<2>
The agency dismissed claims (1 )- (3) on the grounds of untimely EEO
Counselor contact, pursuant to 29 C.F.R. § 1614.107(a)(2). The agency
dismissed claim (4) for failure to state a claim, pursuant to 29 C.F.R. §
1614.107(a)(1).
Claims (1) - (3)
The agency in its final decision states that complainant's detail to the
Air Terminal occurred on September 3, 2002 (claim (1)); complainant's
non-promotion occurred on or about the week of February 4, 2002 (claim
(2)); and the cash award was for performance year ending July 31, 2002
(claim (3)). The agency further stated that complainant had knowledge
of the applicable time limitations for EEO Counselor contact through
EEO posters, the local base newspaper, and complainant's receipt of a
handout entitled Understanding the EEO Complaint Process on March 8,
2002. Furthermore, the agency asserts that none of the equitable doctrines
for extending the time limitations apply to these claims.
On appeal, complainant contends that she was unaware that the position
she was moved into was to be abolished or that the position was without
promotion potential until May 2003. Complainant further argues she was
on sick leave when others holding her position were promoted and it was
not until May 2003, that she was advised that she would not be returned
to her original position at the higher grade. In addition, on appeal,
complainant contends that she was on detail and did not learn until May
2003, that she was not receiving a cash award. Moreover, complainant
states that she did not have any training on the EEO process and that
the office to which she was detailed did not have any EEO posters until
after she filed her 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 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 record contains a copy of an e-mail from the Supervisory Transport
Management Specialist dated June 24, 2003, stating that an EEO poster
is located on the south wall of the Air Terminal Lobby in [building]
339" and that to the best of [his] knowledge it has been there for at
[least] two years. In addition, the record also contains a copy of
an e-mail, dated June 23, 2003, from complainant's supervisor in the
Avionics Department Planning and Operations Office (where complainant
initially worked, prior to her detail at the Air Terminal) stating the
locations where EEO posters are maintained for that office. This e-mail
further states that complainant previously had the responsibility of
posting these notices. Furthermore, the record contains a copy of the
EEO poster, which contains information regarding the applicable time
limitations. Moreover, the record reflects that complainant received on
March 8, 2002, a copy of a handout, containing the pertinent time limits,
entitled Understanding the EEO Complaint Process. We find, therefore,
that complainant had constructive knowledge of the applicable time limits.
See Santiago v. United States Postal Service, EEOC Request No. 05950272
(July 6, 1995).
Regarding claim (1), relating to complainant's reassignment to the Air
Terminal, complainant contends that she did not suspect discrimination
regarding her transfer until she received a position description in
May 2003. A copy of the position description, dated May 6, 2003,
states, [t]his is a temporary detail or assignment...there is no
career advancement opportunity or upward mobility associated with this
position. Thus, complainant may have reasonably suspected she was
discriminated against when she was reassigned to the Air Terminal upon
receiving her position description. Because complainant received the
position description in May 2003, and her initial EEO Counselor contact
was on April 30, 2003, the Commission finds claim (1) is timely.
Regarding claim (2), the record contains a memorandum signed by the
EEO Counselor stating that complainant contacted her on March 8, 2002.
Therein, the EEO Counselor stated that complainant claimed on March 8,
2002, that on or about the week of February 4, 2002, she discovered that
three employees were promoted, while she was not; however, complainant
further stated that did not have a basis for her complaint. The record
also contains a copy of a letter to complainant from the EEO Counselor
dated April 3, 2002, in which the EEO Counselor stated that complainant
has five days from receipt of the letter if she chose to file an informal
complaint; and that if the EEO Counselor did not hear from complainant
within the five-day period, she would assume that complainant chose to
withdraw from the EEO complaint process.
The record does not contain any evidence that complainant contacted the
EEO Counselor during that five-day period. Furthermore, the Commission
has consistently held that first contact with an EEO Counselor does
not count as initial EEO contact for timeliness where complainant
seeks counseling, withdraws, and then re-initiates contact on the same
matter months later. Juarez v. Department of the Air Force, EEOC Appeal
No. 01976151 (June 3, 1998). Thus, the information in the record supports
the argument that complainant had a reasonable suspicion of discrimination
regarding her non-promotion on or about the week of February 4, 2002,
but that April 30, 2003 was her initial date of EEO contact. The agency
properly dismissed claim (2) for untimely EEO Counselor contact.
Regarding claim (3), complainant argues that she was on detail and did
not learn until May 2003, that she was not receiving a cash award. While
the agency states the cash award was for the performance year ending July
31, 2002, it does not state when the cash awards were effective or when
complainant was notified that she was not receiving one. 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. Williams v. Department
of Defense, EEOC Request No. 05920506 (August 25, 1992). Regarding the
instant claim, the agency has not met this burden. The agency has failed
to show that claim(3) was not timely raised with an EEO Counselor.
Claim (4)
The Commission finds that the agency properly dismissed claim (4) for
failure to state a claim. In claim (4), complainant alleges she was
discriminated against when her workers' compensation claim was rejected.
We find complainant is improperly attempting to use the EEO process to
collaterally attack the outcome of the workers' compensation process.
The Commission has held that an employee cannot use the EEO complaint
process to lodge a collateral attack on another proceeding. See Wills
v. Department of Defense, EEOC Request No. 05970596 (July 30, 1998);
Kleinman v. United States Postal Service, EEOC Request No. 05940585
(September 22, 1994); Lingad v. United States Postal Service, EEOC
Request No. 05930106 (June 25, 1993). The proper forum for complainant
to have raised her dissatisfaction with the processing of her workers'
compensation claim is within that process.
In summary, the agency's decision to dismiss claims (2) and (4) was
proper and is AFFIRMED. The agency's decision to dismiss claims (1)
and (3) is REVERSED and those claims are remanded to the agency for
further processing.
ORDER (E0900)
The agency is ordered to process the remanded claims (claims (1) and (3))
in accordance with 29 C.F.R. § 1614.108. The agency shall acknowledge to
the complainant that it has received the remanded claims within thirty
(30) calendar days of the date this decision 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. | Elaine L. Barrios v. Department of the Navy
01A34748
12/1/2003
.
Elaine L. Barrios,
Complainant,
v.
Hansford T. Johnson,
Acting Secretary,
Department of the Navy,
Agency.
Appeal No. 01A34748
Agency No. DON-03-63126-006
DECISION
Complainant filed a timely appeal with this Commission from the
final agency decision dated July 7, 2003, dismissing her complaint of
unlawful employment discrimination in violation of Title VII of the Civil
Rights Act of 1964 (Title VII), as amended, 42 U.S.C. § 2000e et seq.
and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act),
as amended, 29 U.S.C. § 791 et seq.
Complainant initiated EEO Counselor contact on April 30, 2003. Informal
efforts to resolve complainant's concerns were unsuccessful. Complainant
filed a formal EEO complaint dated June 5, 2003, and alleged that she was
subjected to discrimination on the bases of national origin, disability,
and in reprisal for prior EEO activity.
In its final decision, the agency stated complainant's complaint was
comprised of the following four claims<1>:
[Complainant] was moved from [her] position without paperwork and then
finally detailed to a position which is being abolished. The position
[complainant] was moved to has no potential for advancement or training.
The position [complainant] was moved to is normally a higher graded
position, yet [complainant] has been paid at her regular grade.
There was a failure to upgrade complainant from a GS-6 to a GS-7,
although other employees who were not disabled received the promotion.
Other employees received a cash award and [complainant] did not.
On June 3, 2003, [complainant's] workers' compensation claim was rejected
for [her] work related injury.<2>
The agency dismissed claims (1 )- (3) on the grounds of untimely EEO
Counselor contact, pursuant to 29 C.F.R. § 1614.107(a)(2). The agency
dismissed claim (4) for failure to state a claim, pursuant to 29 C.F.R. §
1614.107(a)(1).
Claims (1) - (3)
The agency in its final decision states that complainant's detail to the
Air Terminal occurred on September 3, 2002 (claim (1)); complainant's
non-promotion occurred on or about the week of February 4, 2002 (claim
(2)); and the cash award was for performance year ending July 31, 2002
(claim (3)). The agency further stated that complainant had knowledge
of the applicable time limitations for EEO Counselor contact through
EEO posters, the local base newspaper, and complainant's receipt of a
handout entitled Understanding the EEO Complaint Process on March 8,
2002. Furthermore, the agency asserts that none of the equitable doctrines
for extending the time limitations apply to these claims.
On appeal, complainant contends that she was unaware that the position
she was moved into was to be abolished or that the position was without
promotion potential until May 2003. Complainant further argues she was
on sick leave when others holding her position were promoted and it was
not until May 2003, that she was advised that she would not be returned
to her original position at the higher grade. In addition, on appeal,
complainant contends that she was on detail and did not learn until May
2003, that she was not receiving a cash award. Moreover, complainant
states that she did not have any training on the EEO process and that
the office to which she was detailed did not have any EEO posters until
after she filed her 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 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 record contains a copy of an e-mail from the Supervisory Transport
Management Specialist dated June 24, 2003, stating that an EEO poster
is located on the south wall of the Air Terminal Lobby in [building]
339" and that to the best of [his] knowledge it has been there for at
[least] two years. In addition, the record also contains a copy of
an e-mail, dated June 23, 2003, from complainant's supervisor in the
Avionics Department Planning and Operations Office (where complainant
initially worked, prior to her detail at the Air Terminal) stating the
locations where EEO posters are maintained for that office. This e-mail
further states that complainant previously had the responsibility of
posting these notices. Furthermore, the record contains a copy of the
EEO poster, which contains information regarding the applicable time
limitations. Moreover, the record reflects that complainant received on
March 8, 2002, a copy of a handout, containing the pertinent time limits,
entitled Understanding the EEO Complaint Process. We find, therefore,
that complainant had constructive knowledge of the applicable time limits.
See Santiago v. United States Postal Service, EEOC Request No. 05950272
(July 6, 1995).
Regarding claim (1), relating to complainant's reassignment to the Air
Terminal, complainant contends that she did not suspect discrimination
regarding her transfer until she received a position description in
May 2003. A copy of the position description, dated May 6, 2003,
states, [t]his is a temporary detail or assignment...there is no
career advancement opportunity or upward mobility associated with this
position. Thus, complainant may have reasonably suspected she was
discriminated against when she was reassigned to the Air Terminal upon
receiving her position description. Because complainant received the
position description in May 2003, and her initial EEO Counselor contact
was on April 30, 2003, the Commission finds claim (1) is timely.
Regarding claim (2), the record contains a memorandum signed by the
EEO Counselor stating that complainant contacted her on March 8, 2002.
Therein, the EEO Counselor stated that complainant claimed on March 8,
2002, that on or about the week of February 4, 2002, she discovered that
three employees were promoted, while she was not; however, complainant
further stated that did not have a basis for her complaint. The record
also contains a copy of a letter to complainant from the EEO Counselor
dated April 3, 2002, in which the EEO Counselor stated that complainant
has five days from receipt of the letter if she chose to file an informal
complaint; and that if the EEO Counselor did not hear from complainant
within the five-day period, she would assume that complainant chose to
withdraw from the EEO complaint process.
The record does not contain any evidence that complainant contacted the
EEO Counselor during that five-day period. Furthermore, the Commission
has consistently held that first contact with an EEO Counselor does
not count as initial EEO contact for timeliness where complainant
seeks counseling, withdraws, and then re-initiates contact on the same
matter months later. Juarez v. Department of the Air Force, EEOC Appeal
No. 01976151 (June 3, 1998). Thus, the information in the record supports
the argument that complainant had a reasonable suspicion of discrimination
regarding her non-promotion on or about the week of February 4, 2002,
but that April 30, 2003 was her initial date of EEO contact. The agency
properly dismissed claim (2) for untimely EEO Counselor contact.
Regarding claim (3), complainant argues that she was on detail and did
not learn until May 2003, that she was not receiving a cash award. While
the agency states the cash award was for the performance year ending July
31, 2002, it does not state when the cash awards were effective or when
complainant was notified that she was not receiving one. 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. Williams v. Department
of Defense, EEOC Request No. 05920506 (August 25, 1992). Regarding the
instant claim, the agency has not met this burden. The agency has failed
to show that claim(3) was not timely raised with an EEO Counselor.
Claim (4)
The Commission finds that the agency properly dismissed claim (4) for
failure to state a claim. In claim (4), complainant alleges she was
discriminated against when her workers' compensation claim was rejected.
We find complainant is improperly attempting to use the EEO process to
collaterally attack the outcome of the workers' compensation process.
The Commission has held that an employee cannot use the EEO complaint
process to lodge a collateral attack on another proceeding. See Wills
v. Department of Defense, EEOC Request No. 05970596 (July 30, 1998);
Kleinman v. United States Postal Service, EEOC Request No. 05940585
(September 22, 1994); Lingad v. United States Postal Service, EEOC
Request No. 05930106 (June 25, 1993). The proper forum for complainant
to have raised her dissatisfaction with the processing of her workers'
compensation claim is within that process.
In summary, the agency's decision to dismiss claims (2) and (4) was
proper and is AFFIRMED. The agency's decision to dismiss claims (1)
and (3) is REVERSED and those claims are remanded to the agency for
further processing.
ORDER (E0900)
The agency is ordered to process the remanded claims (claims (1) and (3))
in accordance with 29 C.F.R. § 1614.108. The agency shall acknowledge to
the complainant that it has received the remanded claims within thirty
(30) calendar days of the date this decision becomes final. The agency
shall issue to complainant a copy of the investigative file and also shall
notify complainant of the appropriate rights within one hundred fifty
(150) calendar days of the date this decision becomes final, unless the
matter is otherwise resolved prior to that time. If the complainant
requests a final decision without a hearing, the agency shall issue a
final decision within sixty (60) days of receipt of complainant's request.
A copy of the agency's letter of acknowledgment to complainant and a
copy of the notice that transmits the investigative file and notice of
rights must be sent to the Compliance Officer as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0501)
Compliance with the Commission's corrective action is mandatory.
The agency shall submit its compliance report within thirty (30)
calendar days of the completion of all ordered corrective action. The
report shall be submitted to the Compliance Officer, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. The agency's report must contain supporting
documentation, and the agency must send a copy of all submissions to
the complainant. If the agency does not comply with the Commission's
order, the complainant may petition the Commission for enforcement
of the order. 29 C.F.R. § 1614.503(a). The complainant also has the
right to file a civil action to enforce compliance with the Commission's
order prior to or following an administrative petition for enforcement.
See 29 C.F.R. §§ 1614.407, 1614.408, and 29 C.F.R. § 1614.503(g).
Alternatively, the complainant has the right to file a civil action on
the underlying complaint in accordance with the paragraph below entitled
"Right to File A Civil Action." 29 C.F.R. §§ 1614.407 and 1614.408.
A civil action for enforcement or a civil action on the underlying
complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c)
(1994 & Supp. IV 1999). If the complainant files a civil action, the
administrative processing of the complaint, including any petition for
enforcement, will be terminated. See 29 C.F.R. § 1614.409.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
The Commission may, in its discretion, reconsider the decision in this
case if the complainant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. The appellate decision involved a clearly erroneous interpretation
of material fact or law; or
2. The appellate decision will have a substantial impact on the policies,
practices, or operations of the agency.
Requests to reconsider, with supporting statement or brief, must be filed
with the Office of Federal Operations (OFO) within thirty (30) calendar
days of receipt of this decision or within twenty (20) calendar days of
receipt of another party's timely request for reconsideration. See 29
C.F.R. § 1614.405; Equal Employment Opportunity Management Directive for
29 C.F.R. Part 1614 (EEO MD-110), 9-18 (November 9, 1999). All requests
and arguments must be submitted to the Director, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. In the absence of a legible postmark, the
request to reconsider shall be deemed timely filed if it is received by
mail within five days of the expiration of the applicable filing period.
See 29 C.F.R. § 1614.604. The request or opposition must also include
proof of service on the other party.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely, unless extenuating circumstances
prevented the timely filing of the request. Any supporting documentation
must be submitted with your request for reconsideration. The Commission
will consider requests for reconsideration filed after the deadline only
in very limited circumstances. See 29 C.F.R. § 1614.604(c).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (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
12/1/2003
Date
1While complainant's claims are not numbered
in the final agency decision nor formal complaint, the claims are numbered
herein for ease of reference.
2Complainant's formal complaint was amended to include this claim on
June 16, 2003.
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"Santiago v. United States Postal Service, EEOC Request No. 05950272 (July 6, 1995)",
"Juarez v. Department of the Air Force, EEOC Appeal No. 01976151 (June 3, 1998)",
"Williams v. Department of Defense, EEOC Request No. 059205... | [
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185 | https://www.eeoc.gov/sites/default/files/migrated_files/decisions/0120120613.txt | 0120120613.txt | TXT | text/plain | 41,915 | November 17, 2011 | Appeal Number: 0120120613
Background:
At the time of events giving rise to this complaint, Complainant worked as a GS-13 Equal Employment Opportunity (EEO) Specialist in the Office of Civil Rights (OCR) at the Agency's Savannah River Operations Office (SRO) in Aiken, South Carolina. Complainant, who filed two prior EEO complaints, stated that she filed one complaint in the late 1980s or early 1990s and the other complaint in 2006 or 2007.
On January 20, 2010, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the basis of reprisal for prior protected EEO activity when:
1. on June 1, 2009, she received a verbal counseling from her supervisor (S1), the Director of the Office of Civil Rights at the Savannah River Operations Office, regarding the internship program that she was managing for the Department of Energy EEO Program;
2. on July 15, 2009,1 she was reprimanded by her supervisor, during a meeting that she attended, when the supervisor interrupted the meeting to request that she move to a different seat that the supervisor had chosen for her to use;
3. on August 7, 2009, she was excluded from meetings and e-mails related to contractor activities that she believed she should have been involved in;
4. on September 17, 2009, she received a letter of counseling from her supervisor for mishandling an EEO investigation as part of her work responsibilities;
5. on October 8, 2009, the SRO Finance Accountant refused to sign off on her credit card account, which prevented her from "out processing" for her move and preparations for her new DOE position in Pennsylvania;
6. on May 1, 2009, duties within her position description were reassigned to a GS-12 EEO Specialist by her supervisor; and
7. during the period of January 2, 2008, through October 1, 2009, she was not afforded the same opportunity to act in the absence of her supervisor as were others, including employees of a lower grade.
The investigation disclosed that, as an EEO Specialist, Complainant processed EEO complaints, engaged in contractor oversight, managed the intern program, selected and supervised EEO Counselors, and acted in the absence of the Director of the Office of Civil Rights (OCR). In March 2007, S1 became the Director of the SRO-OCR. According to Complainant, she "couldn't do anything right where [S1] was concerned." Complainant asserted that S1 told her that she (S1) was brought in to clean up the EEO program at SRO and that she could leave if she did not like the way that S1 ran the program.
In January 2008, S1 hired a new EEO Specialist (E1) and directed Complainant to move to a different office so that E1 could have Complainant's office. According to Complainant, E1 performed duties that were within Complainant's job description. When Complainant expressed concerns about this, S1 told Complainant that S1 was the supervisor and could assign duties as she wished.
Complainant had managed the intern program since 2003. S1 told Complainant that she wanted to change the process and directed Complainant to train E1 to be Complainant's back-up on the program. In June 2009, an intern mentor from an Agency office asked Complainant why she was not following her previous practice of greeting new interns and bringing them to their host offices. Complainant replied that S1 had directed her not to do that. Later in the day, S1 gave Complainant a verbal warning and told Complainant that she should not discuss what S1 tells her with others. Complainant told S1 that the verbal counseling was unjustified because Complainant had just answered the mentor's question about why the intern program was being changed.
On July 15, 2009, Complainant attended a meeting and sat next to someone she knew. S1 told her not to sit there, and Complainant moved to a different seat. Complainant alleged that S1 wanted to demean and destroy Complainant because Complainant "stand[s] up for what is right in EEO process, rather than what [S1] wants to do."
Complainant asserted that S1 wanted to isolate her and excluded her from e-mails and meetings about intern, contractor, and budget matters. According to Complainant, E1 could arrange meetings and send e-mails without informing Complainant but Complainant had to send copies of everything that she did to S1 and E1.
Complainant also asserted that, several times, she discussed S1's unfair treatment of her with S1 and told S1 that she was going to speak to S2. On September 14, 2009, Complainant informed S1 that she had accepted a position at a different Agency facility. S1 sent Complainant an e-mail indicating that she wanted to meet with Complainant and a representative from the Human Relations Department to discuss Complainant's concerns, but Complainant refused to meet with S1. On September 15, 2009, after several failed attempts to schedule a meeting with S1's supervisor, the Deputy Manager for Business (S2), Complainant "just walked into [S2's] office and sat down." Complainant told S2 that she accepted the new position because S1 had created a hostile work environment.
On September 17, 2009, S1 gave Complainant a Notice of Formal Counseling for poor management of an EEO investigation in July and August 2009. According to the Notice, Complainant's "failure to schedule interviews and follow up on contacts with the vendor caused delays in the completion of the investigation." The Notice stated that it was not a disciplinary action, that it would not be placed in Complainant's Official Personnel File, and that S1 would keep the Notice. On October 9, 2009, Complainant gave S1 a rebuttal memorandum explaining why she believed the Notice was unjustified. She stated that she and the vendor had scheduled a date for the investigation, that she contacted witnesses to confirm their availability, and that the vendor subsequently asked to postpone the investigation because the investigator was not available for the scheduled date.
Complainant left the SRO in October 2009. Complainant stated that, to "out process" from her position at SRO and move to her new position at a facility in Pennsylvania, she needed to go through several offices and obtain signatures on a form. When Complainant went to the Finance Department, the Finance Accountant (FA) asked for Complainant's credit card. After Complainant explained that the credit card had already been transferred to the new facility, FA refused to sign the form, and Complainant walked away. Later in the day, S1 called Complainant to say that FA was in S1's office and would sign the form, and FA then went to Complainant's office and signed the form. Complainant believed that FA retaliated against her for prior EEO activity because S1 and FA are good friends.
Complainant stated that S1 assigned E1 to perform duties that were within Complainant's position description but not within E1's position description. According to Complainant, E1 selected EEO Counselors, prepared appointment letters, scheduled training for counselors, and attended senior staff meetings. In addition, S1 reassigned contractor-oversight and intern-program duties. Complainant stated S1 changed E1's position description after Complainant left SRO and asserted, "[S1] had reassigned my duties, and I kept bringing that up and she told me she was tired of me coming in there and complaining. I believe that this was another means used by [S1] to continue to harass me for doing my job in the EEO Office."
In addition, Complainant alleged that she did not receive the same opportunities to act in S1's absence that other employees received. Complainant served in an acting capacity in 2008, but it was in name only. In that regard, Complainant asserted that S1 would call E1 when Complainant was acting. The minutes of a January 7, 2009, staff meeting indicate that the office had a rotation chart that assigned employees to act in S1's absence on a monthly basis. Complainant was assigned February, June, and October; E1 was assigned April, August, and December; and two other employees were assigned the remaining months. Complainant stated that she acted only once, in August, when she was out of the office on travel.
Although Complainant did not believe that the alleged retaliation was related to her first EEO complaint, she argued that it "probably" was related to the 2006 complaint. Complainant stated that she filed the 2006 complaint against some Human Resources (HR) employees, including the HR Director, whom S1 had befriended.
Complainant told the EEO Investigator that, in addition to filing prior EEO complaints, she engaged in protected activity involving the nature of her job. In that regard, Complainant stated that she and S1 disagreed about interpretations of EEOC regulations and guidance. For example, they disagreed about whether a complainant may pursue both traditional counseling and alternative dispute resolution (ADR) and whether a complainant should receive a copy of the counseling report. In addition, Complainant disagreed with S1's decision to annotate a 2005 or 2006 EEO Counselor's report to include a new allegation. According to Complainant, the new allegation was against Complainant, S1 did not transfer the case to headquarters for processing, and the Agency settled the case without taking Complainant's statement.2
Further, Complainant asserted that S1 wanted to get rid of Complainant because of a May 11, 2006, report assessing SRO employment/human resources practices and policies. Complainant, an EEO manager from a different Agency facility, and an EEO manager from another agency prepared the report. According to Complainant, who served as the "Lead" on the assessment report, the Agency's HR Director wanted the report to be rescinded. She alleged that the HR Director had a grudge against her for doing her job and that he shared his dislike of Complainant with S1.
Complainant alleged that S1 retaliated against her for doing her job as an EEO professional. She asserted that S1 "clearly did not want to know how things are legally supposed to be done and when [Complainant] would address them with her, she would get irate and further retaliate against [Complainant] for doing [her] job." Complainant further asserted, "[S1] is out to destroy me because I stand up for what is right in EEO process, rather than what she wants to do."
S1 told the EEO Investigator that she was aware that Complainant had an EEO complaint that was active when S1 started working at the Agency. She stated that, at Complainant's request, she asked her former boss to mediate the complaint and that the complaint was resolved through mediation.
S1 stated that she spoke to Complainant about Complainant's June 2009 remarks to the intern mentor because Complainant's remarks were unprofessional, and that she directed all of the attendees at the July 2009 meeting to move around and sit with someone they did not know. S1 also stated that that she made changes to the intern program "to make the process flow better." She explained that "a manager has a right to decide how an organization is going to run and if a manager sees that there are things that could be done better then [the manager has] the right to make that decision." She denied that she excluded Complainant from e-mails or meetings regarding contractor or intern matters and denied that she knew anything about FA refusing to sign Complainant's "out processing" form because of credit-card issues. S1 asserted that Agency employees, such as people in the Budget Office, would go to Complainant rather than to S1 even though S1 was the Director of the Office of Civil Rights. Accordingly, S1 determined that the budget information should go to her and that she would "decide if and who needs to get a copy of that." S1 stated that the counseling program was the only area of responsibility that she removed from Complainant. In that regard, S1 noted that she assigned duties related to the informal complaint process to E1 and duties related to the formal complaint process to Complainant. According to documents that S1 submitted, from March 18, 2018, through July 26, 2009, Complainant acted in S1's absence six times, E1 acted seven times, and two other employees acted a total of nine times.
S1 denied that she retaliated against Complainant for filing an EEO complaint or for disagreeing with S1 about the interpretation of EEO regulations. She stated that "there were many instances where [Complainant] may have questioned the process of what she should do and [S1] challenged her or she challenged [S1] . . . regarding the EEO process."
With respect to the assessment report, S1 stated that she rescinded the report because it was not a good report, did not contain valid information, and sent the wrong message. According to S1, "EEO practitioners from other places . . . did this report and they didn't measure apples to apples." She stated that she "was concerned that we were sending the wrong message if EEOC or someone else came in . . . to look at our program because it says you make an assessment of Savannah River and its practices, not only your HR office, but the leadership also." S1 also stated that she discussed the matter with the Site Manager, that the Site Manager agreed with her recommendation to rescind the report, and that the HR Director was not involved in the decision.
In response to Complainant's assertion that they disagreed about giving a counselor's report to a complainant, S1 stated that she believed that the matter arose during the counseling process and that she told Complainant that they would give the report only when it was required. With respect to Complainant's claim that an EEO Counselor's Report was annotated to include a new allegation, S1 believed that the matter involved a complainant who asserted that she had not received a Notice of Right to File, the complaint file contained no documentation that the complainant had received a Notice, and Headquarters instructed S1 to reconstruct the file. S1 stated that the complainant raised an allegation against the EEO Office, not against a specific person. In addition, S1 asserted that Complainant was aware of all of the allegations in the complaint. She submitted a July 2, 2008, e-mail in which Complainant stated that she was attaching a revised EEO Counselor's Report "to reflect additional allegations."
FA told the EEO Investigator that, before signing an employee's "out processing" form, she checks to ensure that the employee's credit-card account has a zero balance. Because Complainant's account had been transferred to Complainant's new facility, she needed to check with the new facility before she signed Complainant's form. FA stated that the new facility responded to her inquiry and that she signed the form the same day that Complainant presented it.
E1 told the EEO Investigator that S1 instructed her to "shadow" Complainant and learn Complainant's job so that E1 would know what to do when Complainant was not at work. She stated that Complainant and S1 had "some problems" regarding interpretations of regulations. In that regard, E1 noted that she and S1 came from a different federal department, whose practices and policies were different from those of the Agency. According to E1, Complainant challenged S1 by pointing out the ways that things were done at the Agency, and S1 corrected Complainant.
Other Agency employees told the EEO Investigator that S1 "didn't trust anyone" and described her as "mean," "forceful," "condescending," and "defensive." Two employees thought that S1 played employees against one another.
At the conclusion of the investigation, the Agency provided Complainant with a copy of the Report of Investigation and notice of her right to request a hearing before an EEOC Administrative Judge. Complainant timely requested a hearing. The Agency filed a Motion for a Decision without a Hearing on July 15, 2011, and Complainant, through her attorney, filed an Opposition to the Agency's Motion on August 1, 2011. On August 22, 2011, the AJ issued a decision granting summary judgment to the Agency. The AJ issued an amended decision, correcting typographical errors in the original decision, on September 12, 2011.
In her decision, the AJ found that summary disposition was appropriate because there were no genuine issues of material fact and the record was adequately developed. After outlining the undisputed material facts and viewing the evidence in the light most favorable to Complainant, the AJ concluded that Complainant failed to establish that the Agency subjected her to unlawful discrimination. She found that Complainant failed to establish a nexus between her protected EEO activity and the incidents at issue here. In that regard, the AJ noted that S1 was not working at the Agency when Complainant filed her 2006 complaint and that Complainant merely speculated that S1 and the HR Director were friends. Citing Montgomery v. Dept of the Army, EEOC Petition No. 03A00044 (Apr. 17, 2002), the AJ found that Complainant's objections to S1's interpretation and application of EEO regulations did not constitute protected EEO activity. On that point, the AJ noted that Complainant's disagreement with S1's approach was different from an employee's objections to discriminatory practices under the opposition clause of Title VII's anti-retaliation provision. Accordingly, the AJ concluded that Complainant failed to establish a prima facie case of reprisal.
The AJ also concluded that S1 rebutted Complainant's claims. In that regard, the AJ noted that S1 explained that she changed many processes and procedures when she came to the Agency. The AJ also noted that many employees, including individuals with no prior EEO activity, described S1 as "stern" or "forceful" in her approach to everyone.
In addition, the AJ found that Complainant failed to establish that the Agency subjected her to a hostile work environment. Noting that Title VII is not a general civility code, the AJ concluded that S1's alleged conduct, even if true, did not create an abusive working environment. The AJ further concluded that the alleged conduct was not sufficiently pervasive to alter the terms or conditions of Complainant's employment. The AJ found that, "based upon the undisputed facts, Complainant suffered no actionable adverse employment actions as a result of [S1's] changes or approach."
On October 19, 2011, the Agency issued a final order fully implementing the AJ's decision. This appeal followed.
CONTENTIONS ON APPEAL
On appeal, Complainant, through her attorney, argues that the AJ erroneously granted the Agency's Motion for a Decision without a Hearing. Complainant asserts that the Agency failed to provide a comprehensive list of undisputed facts, that the AJ did not consider Complainant's evidence, and that there exist genuine issues of material fact. She also asserts, as she did in response to the Agency's Motion, that a hearing is necessary because "[t]he record is replete with numerous inconsistencies, contradictions, and evidence regarding the reasons for [Complainant's] treatment and actions taken against her." According to Complainant, '[t]he inconsistencies and weaknesses blatantly demonstrate pretext and prove that the Agency's proffered reasons are unworthy of credence."
In addition, Complainant argues that she established a nexus between her protected activity and her claims of reprisal. According to Complainant, management's behavior changed after she filed her EEO complaint, submitted and refused to rescind the assessment report, challenged S1's interpretation and application of EEO procedures, and complained of discriminatory treatment. She argues that there exist genuine issues of fact about whether the Agency's actions toward her would dissuade a reasonable employee from complaining about discrimination and whether she endured a hostile work environment. Complainant asserts that the Agency subjected her to adverse action and to treatment that was sufficiently severe to alter the conditions of her employment.
In response, the Agency argues that the AJ properly found that Complainant failed to establish a prima facie case of discrimination. The Agency argues that Complainant has not shown that any material facts are in dispute and has not established a nexus between her protected activity and the Agency's actions. Further, the Agency contends that Complainant's challenges to S1's interpretation and application of EEO regulations did not constitute protected activity. Noting that "it is not a right of employment to argue with one's boss," the Agency argues that Complainant has not shown that she suffered an adverse employment action. The Agency also argues that it articulated legitimate, nondiscriminatory reasons for its actions and that Complainant failed to show that the articulated reasons were pretextual.
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. (Nov. 9, 1999) (providing that both an AJ's decision to issue a decision without a hearing and the decision itself 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 Chap. 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").
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.
ISSUES PRESENTED
The issues presented are (1) whether the Administrative Judge (AJ) properly granted the Agency's Motion for a Decision without a Hearing on Complainant's claim that the Agency discriminated against her on the basis of reprisal for protected EEO activity and (2) whether the AJ properly found that Complainant had not proven that she had been discriminated against, as alleged.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a GS-13 Equal Employment Opportunity (EEO) Specialist in the Office of Civil Rights (OCR) at the Agency's Savannah River Operations Office (SRO) in Aiken, South Carolina. Complainant, who filed two prior EEO complaints, stated that she filed one complaint in the late 1980s or early 1990s and the other complaint in 2006 or 2007.
On January 20, 2010, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the basis of reprisal for prior protected EEO activity when:
1. on June 1, 2009, she received a verbal counseling from her supervisor (S1), the Director of the Office of Civil Rights at the Savannah River Operations Office, regarding the internship program that she was managing for the Department of Energy EEO Program;
2. on July 15, 2009,1 she was reprimanded by her supervisor, during a meeting that she attended, when the supervisor interrupted the meeting to request that she move to a different seat that the supervisor had chosen for her to use;
3. on August 7, 2009, she was excluded from meetings and e-mails related to contractor activities that she believed she should have been involved in;
4. on September 17, 2009, she received a letter of counseling from her supervisor for mishandling an EEO investigation as part of her work responsibilities;
5. on October 8, 2009, the SRO Finance Accountant refused to sign off on her credit card account, which prevented her from "out processing" for her move and preparations for her new DOE position in Pennsylvania;
6. on May 1, 2009, duties within her position description were reassigned to a GS-12 EEO Specialist by her supervisor; and
7. during the period of January 2, 2008, through October 1, 2009, she was not afforded the same opportunity to act in the absence of her supervisor as were others, including employees of a lower grade.
The investigation disclosed that, as an EEO Specialist, Complainant processed EEO complaints, engaged in contractor oversight, managed the intern program, selected and supervised EEO Counselors, and acted in the absence of the Director of the Office of Civil Rights (OCR). In March 2007, S1 became the Director of the SRO-OCR. According to Complainant, she "couldn't do anything right where [S1] was concerned." Complainant asserted that S1 told her that she (S1) was brought in to clean up the EEO program at SRO and that she could leave if she did not like the way that S1 ran the program.
In January 2008, S1 hired a new EEO Specialist (E1) and directed Complainant to move to a different office so that E1 could have Complainant's office. According to Complainant, E1 performed duties that were within Complainant's job description. When Complainant expressed concerns about this, S1 told Complainant that S1 was the supervisor and could assign duties as she wished.
Complainant had managed the intern program since 2003. S1 told Complainant that she wanted to change the process and directed Complainant to train E1 to be Complainant's back-up on the program. In June 2009, an intern mentor from an Agency office asked Complainant why she was not following her previous practice of greeting new interns and bringing them to their host offices. Complainant replied that S1 had directed her not to do that. Later in the day, S1 gave Complainant a verbal warning and told Complainant that she should not discuss what S1 tells her with others. Complainant told S1 that the verbal counseling was unjustified because Complainant had just answered the mentor's question about why the intern program was being changed.
On July 15, 2009, Complainant attended a meeting and sat next to someone she knew. S1 told her not to sit there, and Complainant moved to a different seat. Complainant alleged that S1 wanted to demean and destroy Complainant because Complainant "stand[s] up for what is right in EEO process, rather than what [S1] wants to do."
Complainant asserted that S1 wanted to isolate her and excluded her from e-mails and meetings about intern, contractor, and budget matters. According to Complainant, E1 could arrange meetings and send e-mails without informing Complainant but Complainant had to send copies of everything that she did to S1 and E1.
Complainant also asserted that, several times, she discussed S1's unfair treatment of her with S1 and told S1 that she was going to speak to S2. On September 14, 2009, Complainant informed S1 that she had accepted a position at a different Agency facility. S1 sent Complainant an e-mail indicating that she wanted to meet with Complainant and a representative from the Human Relations Department to discuss Complainant's concerns, but Complainant refused to meet with S1. On September 15, 2009, after several failed attempts to schedule a meeting with S1's supervisor, the Deputy Manager for Business (S2), Complainant "just walked into [S2's] office and sat down." Complainant told S2 that she accepted the new position because S1 had created a hostile work environment.
On September 17, 2009, S1 gave Complainant a Notice of Formal Counseling for poor management of an EEO investigation in July and August 2009. According to the Notice, Complainant's "failure to schedule interviews and follow up on contacts with the vendor caused delays in the completion of the investigation." The Notice stated that it was not a disciplinary action, that it would not be placed in Complainant's Official Personnel File, and that S1 would keep the Notice. On October 9, 2009, Complainant gave S1 a rebuttal memorandum explaining why she believed the Notice was unjustified. She stated that she and the vendor had scheduled a date for the investigation, that she contacted witnesses to confirm their availability, and that the vendor subsequently asked to postpone the investigation because the investigator was not available for the scheduled date.
Complainant left the SRO in October 2009. Complainant stated that, to "out process" from her position at SRO and move to her new position at a facility in Pennsylvania, she needed to go through several offices and obtain signatures on a form. When Complainant went to the Finance Department, the Finance Accountant (FA) asked for Complainant's credit card. After Complainant explained that the credit card had already been transferred to the new facility, FA refused to sign the form, and Complainant walked away. Later in the day, S1 called Complainant to say that FA was in S1's office and would sign the form, and FA then went to Complainant's office and signed the form. Complainant believed that FA retaliated against her for prior EEO activity because S1 and FA are good friends.
Complainant stated that S1 assigned E1 to perform duties that were within Complainant's position description but not within E1's position description. According to Complainant, E1 selected EEO Counselors, prepared appointment letters, scheduled training for counselors, and attended senior staff meetings. In addition, S1 reassigned contractor-oversight and intern-program duties. Complainant stated S1 changed E1's position description after Complainant left SRO and asserted, "[S1] had reassigned my duties, and I kept bringing that up and she told me she was tired of me coming in there and complaining. I believe that this was another means used by [S1] to continue to harass me for doing my job in the EEO Office."
In addition, Complainant alleged that she did not receive the same opportunities to act in S1's absence that other employees received. Complainant served in an acting capacity in 2008, but it was in name only. In that regard, Complainant asserted that S1 would call E1 when Complainant was acting. The minutes of a January 7, 2009, staff meeting indicate that the office had a rotation chart that assigned employees to act in S1's absence on a monthly basis. Complainant was assigned February, June, and October; E1 was assigned April, August, and December; and two other employees were assigned the remaining months. Complainant stated that she acted only once, in August, when she was out of the office on travel.
Although Complainant did not believe that the alleged retaliation was related to her first EEO complaint, she argued that it "probably" was related to the 2006 complaint. Complainant stated that she filed the 2006 complaint against some Human Resources (HR) employees, including the HR Director, whom S1 had befriended.
Complainant told the EEO Investigator that, in addition to filing prior EEO complaints, she engaged in protected activity involving the nature of her job. In that regard, Complainant stated that she and S1 disagreed about interpretations of EEOC regulations and guidance. For example, they disagreed about whether a complainant may pursue both traditional counseling and alternative dispute resolution (ADR) and whether a complainant should receive a copy of the counseling report. In addition, Complainant disagreed with S1's decision to annotate a 2005 or 2006 EEO Counselor's report to include a new allegation. According to Complainant, the new allegation was against Complainant, S1 did not transfer the case to headquarters for processing, and the Agency settled the case without taking Complainant's statement.2
Further, Complainant asserted that S1 wanted to get rid of Complainant because of a May 11, 2006, report assessing SRO employment/human resources practices and policies. Complainant, an EEO manager from a different Agency facility, and an EEO manager from another agency prepared the report. According to Complainant, who served as the "Lead" on the assessment report, the Agency's HR Director wanted the report to be rescinded. She alleged that the HR Director had a grudge against her for doing her job and that he shared his dislike of Complainant with S1.
Complainant alleged that S1 retaliated against her for doing her job as an EEO professional. She asserted that S1 "clearly did not want to know how things are legally supposed to be done and when [Complainant] would address them with her, she would get irate and further retaliate against [Complainant] for doing [her] job." Complainant further asserted, "[S1] is out to destroy me because I stand up for what is right in EEO process, rather than what she wants to do."
S1 told the EEO Investigator that she was aware that Complainant had an EEO complaint that was active when S1 started working at the Agency. She stated that, at Complainant's request, she asked her former boss to mediate the complaint and that the complaint was resolved through mediation.
S1 stated that she spoke to Complainant about Complainant's June 2009 remarks to the intern mentor because Complainant's remarks were unprofessional, and that she directed all of the attendees at the July 2009 meeting to move around and sit with someone they did not know. S1 also stated that that she made changes to the intern program "to make the process flow better." She explained that "a manager has a right to decide how an organization is going to run and if a manager sees that there are things that could be done better then [the manager has] the right to make that decision." She denied that she excluded Complainant from e-mails or meetings regarding contractor or intern matters and denied that she knew anything about FA refusing to sign Complainant's "out processing" form because of credit-card issues. S1 asserted that Agency employees, such as people in the Budget Office, would go to Complainant rather than to S1 even though S1 was the Director of the Office of Civil Rights. | Complainant
v.
Dr. Ernest Moniz,
Secretary,
Department of Energy,
Agency.
Appeal No. 0120120613
Hearing No. 430-2011-00021X
Agency No. 2010-0032-R12
DECISION
On November 17, 2011, Complainant filed an appeal from the Agency's October 19, 2011, final order concerning her equal employment opportunity (EEO) complaint alleging employment discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. § 2000e et seq. The Commission accepts the appeal pursuant to 29 C.F.R. § 1614.405(a). For the following reasons, the Commission AFFIRMS the Agency's final order.
ISSUES PRESENTED
The issues presented are (1) whether the Administrative Judge (AJ) properly granted the Agency's Motion for a Decision without a Hearing on Complainant's claim that the Agency discriminated against her on the basis of reprisal for protected EEO activity and (2) whether the AJ properly found that Complainant had not proven that she had been discriminated against, as alleged.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a GS-13 Equal Employment Opportunity (EEO) Specialist in the Office of Civil Rights (OCR) at the Agency's Savannah River Operations Office (SRO) in Aiken, South Carolina. Complainant, who filed two prior EEO complaints, stated that she filed one complaint in the late 1980s or early 1990s and the other complaint in 2006 or 2007.
On January 20, 2010, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the basis of reprisal for prior protected EEO activity when:
1. on June 1, 2009, she received a verbal counseling from her supervisor (S1), the Director of the Office of Civil Rights at the Savannah River Operations Office, regarding the internship program that she was managing for the Department of Energy EEO Program;
2. on July 15, 2009,1 she was reprimanded by her supervisor, during a meeting that she attended, when the supervisor interrupted the meeting to request that she move to a different seat that the supervisor had chosen for her to use;
3. on August 7, 2009, she was excluded from meetings and e-mails related to contractor activities that she believed she should have been involved in;
4. on September 17, 2009, she received a letter of counseling from her supervisor for mishandling an EEO investigation as part of her work responsibilities;
5. on October 8, 2009, the SRO Finance Accountant refused to sign off on her credit card account, which prevented her from "out processing" for her move and preparations for her new DOE position in Pennsylvania;
6. on May 1, 2009, duties within her position description were reassigned to a GS-12 EEO Specialist by her supervisor; and
7. during the period of January 2, 2008, through October 1, 2009, she was not afforded the same opportunity to act in the absence of her supervisor as were others, including employees of a lower grade.
The investigation disclosed that, as an EEO Specialist, Complainant processed EEO complaints, engaged in contractor oversight, managed the intern program, selected and supervised EEO Counselors, and acted in the absence of the Director of the Office of Civil Rights (OCR). In March 2007, S1 became the Director of the SRO-OCR. According to Complainant, she "couldn't do anything right where [S1] was concerned." Complainant asserted that S1 told her that she (S1) was brought in to clean up the EEO program at SRO and that she could leave if she did not like the way that S1 ran the program.
In January 2008, S1 hired a new EEO Specialist (E1) and directed Complainant to move to a different office so that E1 could have Complainant's office. According to Complainant, E1 performed duties that were within Complainant's job description. When Complainant expressed concerns about this, S1 told Complainant that S1 was the supervisor and could assign duties as she wished.
Complainant had managed the intern program since 2003. S1 told Complainant that she wanted to change the process and directed Complainant to train E1 to be Complainant's back-up on the program. In June 2009, an intern mentor from an Agency office asked Complainant why she was not following her previous practice of greeting new interns and bringing them to their host offices. Complainant replied that S1 had directed her not to do that. Later in the day, S1 gave Complainant a verbal warning and told Complainant that she should not discuss what S1 tells her with others. Complainant told S1 that the verbal counseling was unjustified because Complainant had just answered the mentor's question about why the intern program was being changed.
On July 15, 2009, Complainant attended a meeting and sat next to someone she knew. S1 told her not to sit there, and Complainant moved to a different seat. Complainant alleged that S1 wanted to demean and destroy Complainant because Complainant "stand[s] up for what is right in EEO process, rather than what [S1] wants to do."
Complainant asserted that S1 wanted to isolate her and excluded her from e-mails and meetings about intern, contractor, and budget matters. According to Complainant, E1 could arrange meetings and send e-mails without informing Complainant but Complainant had to send copies of everything that she did to S1 and E1.
Complainant also asserted that, several times, she discussed S1's unfair treatment of her with S1 and told S1 that she was going to speak to S2. On September 14, 2009, Complainant informed S1 that she had accepted a position at a different Agency facility. S1 sent Complainant an e-mail indicating that she wanted to meet with Complainant and a representative from the Human Relations Department to discuss Complainant's concerns, but Complainant refused to meet with S1. On September 15, 2009, after several failed attempts to schedule a meeting with S1's supervisor, the Deputy Manager for Business (S2), Complainant "just walked into [S2's] office and sat down." Complainant told S2 that she accepted the new position because S1 had created a hostile work environment.
On September 17, 2009, S1 gave Complainant a Notice of Formal Counseling for poor management of an EEO investigation in July and August 2009. According to the Notice, Complainant's "failure to schedule interviews and follow up on contacts with the vendor caused delays in the completion of the investigation." The Notice stated that it was not a disciplinary action, that it would not be placed in Complainant's Official Personnel File, and that S1 would keep the Notice. On October 9, 2009, Complainant gave S1 a rebuttal memorandum explaining why she believed the Notice was unjustified. She stated that she and the vendor had scheduled a date for the investigation, that she contacted witnesses to confirm their availability, and that the vendor subsequently asked to postpone the investigation because the investigator was not available for the scheduled date.
Complainant left the SRO in October 2009. Complainant stated that, to "out process" from her position at SRO and move to her new position at a facility in Pennsylvania, she needed to go through several offices and obtain signatures on a form. When Complainant went to the Finance Department, the Finance Accountant (FA) asked for Complainant's credit card. After Complainant explained that the credit card had already been transferred to the new facility, FA refused to sign the form, and Complainant walked away. Later in the day, S1 called Complainant to say that FA was in S1's office and would sign the form, and FA then went to Complainant's office and signed the form. Complainant believed that FA retaliated against her for prior EEO activity because S1 and FA are good friends.
Complainant stated that S1 assigned E1 to perform duties that were within Complainant's position description but not within E1's position description. According to Complainant, E1 selected EEO Counselors, prepared appointment letters, scheduled training for counselors, and attended senior staff meetings. In addition, S1 reassigned contractor-oversight and intern-program duties. Complainant stated S1 changed E1's position description after Complainant left SRO and asserted, "[S1] had reassigned my duties, and I kept bringing that up and she told me she was tired of me coming in there and complaining. I believe that this was another means used by [S1] to continue to harass me for doing my job in the EEO Office."
In addition, Complainant alleged that she did not receive the same opportunities to act in S1's absence that other employees received. Complainant served in an acting capacity in 2008, but it was in name only. In that regard, Complainant asserted that S1 would call E1 when Complainant was acting. The minutes of a January 7, 2009, staff meeting indicate that the office had a rotation chart that assigned employees to act in S1's absence on a monthly basis. Complainant was assigned February, June, and October; E1 was assigned April, August, and December; and two other employees were assigned the remaining months. Complainant stated that she acted only once, in August, when she was out of the office on travel.
Although Complainant did not believe that the alleged retaliation was related to her first EEO complaint, she argued that it "probably" was related to the 2006 complaint. Complainant stated that she filed the 2006 complaint against some Human Resources (HR) employees, including the HR Director, whom S1 had befriended.
Complainant told the EEO Investigator that, in addition to filing prior EEO complaints, she engaged in protected activity involving the nature of her job. In that regard, Complainant stated that she and S1 disagreed about interpretations of EEOC regulations and guidance. For example, they disagreed about whether a complainant may pursue both traditional counseling and alternative dispute resolution (ADR) and whether a complainant should receive a copy of the counseling report. In addition, Complainant disagreed with S1's decision to annotate a 2005 or 2006 EEO Counselor's report to include a new allegation. According to Complainant, the new allegation was against Complainant, S1 did not transfer the case to headquarters for processing, and the Agency settled the case without taking Complainant's statement.2
Further, Complainant asserted that S1 wanted to get rid of Complainant because of a May 11, 2006, report assessing SRO employment/human resources practices and policies. Complainant, an EEO manager from a different Agency facility, and an EEO manager from another agency prepared the report. According to Complainant, who served as the "Lead" on the assessment report, the Agency's HR Director wanted the report to be rescinded. She alleged that the HR Director had a grudge against her for doing her job and that he shared his dislike of Complainant with S1.
Complainant alleged that S1 retaliated against her for doing her job as an EEO professional. She asserted that S1 "clearly did not want to know how things are legally supposed to be done and when [Complainant] would address them with her, she would get irate and further retaliate against [Complainant] for doing [her] job." Complainant further asserted, "[S1] is out to destroy me because I stand up for what is right in EEO process, rather than what she wants to do."
S1 told the EEO Investigator that she was aware that Complainant had an EEO complaint that was active when S1 started working at the Agency. She stated that, at Complainant's request, she asked her former boss to mediate the complaint and that the complaint was resolved through mediation.
S1 stated that she spoke to Complainant about Complainant's June 2009 remarks to the intern mentor because Complainant's remarks were unprofessional, and that she directed all of the attendees at the July 2009 meeting to move around and sit with someone they did not know. S1 also stated that that she made changes to the intern program "to make the process flow better." She explained that "a manager has a right to decide how an organization is going to run and if a manager sees that there are things that could be done better then [the manager has] the right to make that decision." She denied that she excluded Complainant from e-mails or meetings regarding contractor or intern matters and denied that she knew anything about FA refusing to sign Complainant's "out processing" form because of credit-card issues. S1 asserted that Agency employees, such as people in the Budget Office, would go to Complainant rather than to S1 even though S1 was the Director of the Office of Civil Rights. Accordingly, S1 determined that the budget information should go to her and that she would "decide if and who needs to get a copy of that." S1 stated that the counseling program was the only area of responsibility that she removed from Complainant. In that regard, S1 noted that she assigned duties related to the informal complaint process to E1 and duties related to the formal complaint process to Complainant. According to documents that S1 submitted, from March 18, 2018, through July 26, 2009, Complainant acted in S1's absence six times, E1 acted seven times, and two other employees acted a total of nine times.
S1 denied that she retaliated against Complainant for filing an EEO complaint or for disagreeing with S1 about the interpretation of EEO regulations. She stated that "there were many instances where [Complainant] may have questioned the process of what she should do and [S1] challenged her or she challenged [S1] . . . regarding the EEO process."
With respect to the assessment report, S1 stated that she rescinded the report because it was not a good report, did not contain valid information, and sent the wrong message. According to S1, "EEO practitioners from other places . . . did this report and they didn't measure apples to apples." She stated that she "was concerned that we were sending the wrong message if EEOC or someone else came in . . . to look at our program because it says you make an assessment of Savannah River and its practices, not only your HR office, but the leadership also." S1 also stated that she discussed the matter with the Site Manager, that the Site Manager agreed with her recommendation to rescind the report, and that the HR Director was not involved in the decision.
In response to Complainant's assertion that they disagreed about giving a counselor's report to a complainant, S1 stated that she believed that the matter arose during the counseling process and that she told Complainant that they would give the report only when it was required. With respect to Complainant's claim that an EEO Counselor's Report was annotated to include a new allegation, S1 believed that the matter involved a complainant who asserted that she had not received a Notice of Right to File, the complaint file contained no documentation that the complainant had received a Notice, and Headquarters instructed S1 to reconstruct the file. S1 stated that the complainant raised an allegation against the EEO Office, not against a specific person. In addition, S1 asserted that Complainant was aware of all of the allegations in the complaint. She submitted a July 2, 2008, e-mail in which Complainant stated that she was attaching a revised EEO Counselor's Report "to reflect additional allegations."
FA told the EEO Investigator that, before signing an employee's "out processing" form, she checks to ensure that the employee's credit-card account has a zero balance. Because Complainant's account had been transferred to Complainant's new facility, she needed to check with the new facility before she signed Complainant's form. FA stated that the new facility responded to her inquiry and that she signed the form the same day that Complainant presented it.
E1 told the EEO Investigator that S1 instructed her to "shadow" Complainant and learn Complainant's job so that E1 would know what to do when Complainant was not at work. She stated that Complainant and S1 had "some problems" regarding interpretations of regulations. In that regard, E1 noted that she and S1 came from a different federal department, whose practices and policies were different from those of the Agency. According to E1, Complainant challenged S1 by pointing out the ways that things were done at the Agency, and S1 corrected Complainant.
Other Agency employees told the EEO Investigator that S1 "didn't trust anyone" and described her as "mean," "forceful," "condescending," and "defensive." Two employees thought that S1 played employees against one another.
At the conclusion of the investigation, the Agency provided Complainant with a copy of the Report of Investigation and notice of her right to request a hearing before an EEOC Administrative Judge. Complainant timely requested a hearing. The Agency filed a Motion for a Decision without a Hearing on July 15, 2011, and Complainant, through her attorney, filed an Opposition to the Agency's Motion on August 1, 2011. On August 22, 2011, the AJ issued a decision granting summary judgment to the Agency. The AJ issued an amended decision, correcting typographical errors in the original decision, on September 12, 2011.
In her decision, the AJ found that summary disposition was appropriate because there were no genuine issues of material fact and the record was adequately developed. After outlining the undisputed material facts and viewing the evidence in the light most favorable to Complainant, the AJ concluded that Complainant failed to establish that the Agency subjected her to unlawful discrimination. She found that Complainant failed to establish a nexus between her protected EEO activity and the incidents at issue here. In that regard, the AJ noted that S1 was not working at the Agency when Complainant filed her 2006 complaint and that Complainant merely speculated that S1 and the HR Director were friends. Citing Montgomery v. Dept of the Army, EEOC Petition No. 03A00044 (Apr. 17, 2002), the AJ found that Complainant's objections to S1's interpretation and application of EEO regulations did not constitute protected EEO activity. On that point, the AJ noted that Complainant's disagreement with S1's approach was different from an employee's objections to discriminatory practices under the opposition clause of Title VII's anti-retaliation provision. Accordingly, the AJ concluded that Complainant failed to establish a prima facie case of reprisal.
The AJ also concluded that S1 rebutted Complainant's claims. In that regard, the AJ noted that S1 explained that she changed many processes and procedures when she came to the Agency. The AJ also noted that many employees, including individuals with no prior EEO activity, described S1 as "stern" or "forceful" in her approach to everyone.
In addition, the AJ found that Complainant failed to establish that the Agency subjected her to a hostile work environment. Noting that Title VII is not a general civility code, the AJ concluded that S1's alleged conduct, even if true, did not create an abusive working environment. The AJ further concluded that the alleged conduct was not sufficiently pervasive to alter the terms or conditions of Complainant's employment. The AJ found that, "based upon the undisputed facts, Complainant suffered no actionable adverse employment actions as a result of [S1's] changes or approach."
On October 19, 2011, the Agency issued a final order fully implementing the AJ's decision. This appeal followed.
CONTENTIONS ON APPEAL
On appeal, Complainant, through her attorney, argues that the AJ erroneously granted the Agency's Motion for a Decision without a Hearing. Complainant asserts that the Agency failed to provide a comprehensive list of undisputed facts, that the AJ did not consider Complainant's evidence, and that there exist genuine issues of material fact. She also asserts, as she did in response to the Agency's Motion, that a hearing is necessary because "[t]he record is replete with numerous inconsistencies, contradictions, and evidence regarding the reasons for [Complainant's] treatment and actions taken against her." According to Complainant, '[t]he inconsistencies and weaknesses blatantly demonstrate pretext and prove that the Agency's proffered reasons are unworthy of credence."
In addition, Complainant argues that she established a nexus between her protected activity and her claims of reprisal. According to Complainant, management's behavior changed after she filed her EEO complaint, submitted and refused to rescind the assessment report, challenged S1's interpretation and application of EEO procedures, and complained of discriminatory treatment. She argues that there exist genuine issues of fact about whether the Agency's actions toward her would dissuade a reasonable employee from complaining about discrimination and whether she endured a hostile work environment. Complainant asserts that the Agency subjected her to adverse action and to treatment that was sufficiently severe to alter the conditions of her employment.
In response, the Agency argues that the AJ properly found that Complainant failed to establish a prima facie case of discrimination. The Agency argues that Complainant has not shown that any material facts are in dispute and has not established a nexus between her protected activity and the Agency's actions. Further, the Agency contends that Complainant's challenges to S1's interpretation and application of EEO regulations did not constitute protected activity. Noting that "it is not a right of employment to argue with one's boss," the Agency argues that Complainant has not shown that she suffered an adverse employment action. The Agency also argues that it articulated legitimate, nondiscriminatory reasons for its actions and that Complainant failed to show that the articulated reasons were pretextual.
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. (Nov. 9, 1999) (providing that both an AJ's decision to issue a decision without a hearing and the decision itself 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 Chap. 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
Decision without a Hearing
The Commission's 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. § 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 court's 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 party's favor. Id. at 255. An issue of fact is "genuine" if the evidence is such that a reasonable fact finder could find in favor of the non-moving party. Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital Equip. Corp., 846 F.2d 103, 105 (1st Cir. 1988). A fact is "material" if it has the potential to affect the outcome of the case.
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. Dep't of Def., EEOC Appeal No. 01A24206 (July 11, 2003). Finally, an AJ should not rule in favor of one party without holding a hearing unless he or she ensures that the party opposing the ruling is given (1) ample notice of the proposal to issue a decision without a hearing, (2) a comprehensive statement of the allegedly undisputed material facts, (3) the opportunity to respond to such a statement, and (4) the chance to engage in discovery before responding, if necessary. According to the Supreme Court, Rule 56 itself precludes summary judgment "where the [party opposing summary judgment] has not had the opportunity to discover information that is essential to his opposition." Anderson, 477 U.S. at 250. In the hearing context, this means that the administrative judge must enable the parties to engage in the amount of discovery necessary to properly respond to any motion for a decision without a hearing. Cf. 29 C.F.R. § 1614.109(g)(2) (suggesting that an administrative judge could order discovery, if necessary, after receiving an opposition to a motion for a decision without a hearing).
In the instant case, we find that the AJ's decision to issue a decision without a hearing was appropriate. The AJ viewed the evidence in the light most favorable to Complainant. The parties had an opportunity to engage in discovery, the record has been adequately developed, Complainant was given notice of the Agency's Motion for a Decision without a Hearing, and she responded to the Motion. Although the Agency's Motion did not provide a list of undisputed facts, its discussion of Complainant's claims provided enough information that Complainant could address a dispute of material fact in her response to the motion. Complainant disputes the AJ's findings of fact, but she has not shown that there existed a genuine issue of material fact that would warrant a hearing.
For the reasons discussed below, we find that, even assuming all facts in the light most favorable to Complainant, a reasonable fact-finder could not find in her favor. Therefore, we find that the AJ properly issued a decision without a hearing.
Disparate Treatment
To prevail in a disparate treatment claim, Complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Complainant generally 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 802 n.13. The burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the Agency's explanation is pretextual. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 143 (2000); St. Mary's Honor Center v. Hicks, 509 U.S. 502, 519 (1993). Complainant can do this by showing that the proffered explanations are unworthy of credence or that a discriminatory reason more likely motivated the Agency. Burdine, 450 U.S. at 256.
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.). Specifically, in a reprisal claim, and in accordance with the burdens set forth in McDonnell Douglas, Hochstadt v. Worcester Foundation for Experimental Biology, 425 F. Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222 (1st Cir. 1976), and Coffman v. Dep't of Veteran Affairs, EEOC Request No. 05960473 (Nov. 20, 1997), a complainant may establish a prima facie case of reprisal by showing that: (1) he or she engaged in a protected activity; (2) the agency was aware of the protected activity; (3) subsequently, he or she was subjected to adverse treatment by the agency; and (4) a nexus exists between the protected activity and the adverse treatment. Whitmire v. Dep't of the Air Force, EEOC Appeal No. 01A00340 (Sept. 25, 2000). An individual can engage in activity protected under Title VII by opposing a practice made unlawful by Title VII or by filing a charge, testifying, assisting, or participating in an investigation, proceeding, or hearing under Title VII. 42 U.S.C. § 2000(e)-3(a).
The statutory anti-retaliation provisions prohibit any adverse treatment that is based on a retaliatory motive and is reasonably likely to deter a reasonable employee from engaging in protected activity. Burlington N. and Santa Fe Ry. Co. v. White, 548 U.S. 53 (2006). Although petty slights and trivial annoyances are not actionable, adverse actions such as reprimands, threats, negative evaluations, and harassment are actionable. EEOC Compliance Manual Section 8, "Retaliation," EEOC Notice 915.003 § 8.II.D at 8-11-16 (May 20, 1998).
We assume, for purposes of analysis and without so finding, that Complainant has established a prima facie case of discrimination based on reprisal. We find that the Agency has articulated legitimate, nondiscriminatory reasons for its actions. For example, the September 17, 2009, Notice of Formal Counseling stated that Complainant failed to schedule interviews and failed to follow up with the vendor. FA stated that she needed to check with the facility to which Complainant's credit-card account had been transferred before FA could sign Complainant's "out processing" form. S1 stated that she spoke to Complainant about Complainant's remarks to the intern mentor because the remarks were unprofessional and that she made changes to the intern program to make it flow better. She believed that, as a manager, she had the right to decide how things should be done.
Complainant has not shown the articulated reasons to be pretextual. Even when viewing all of the evidence in the light most favorable to Complainant, we cannot say that the Agency took the actions at issue because of Complainant's protected EEO activity. The record reflects that, as the Director of the Office of Civil Rights, S1 wanted to manage the Office her own way and to require Agency employees to contact her rather than Complainant. The record also reflects that S1 was a difficult manager whom other employees found to be "forceful" and "condescending." Complainant has not put forth any persuasive evidence to show that her prior EEO activity motivated S1's actions toward her. On the contrary, the preponderance of the evidence establishes that personality conflicts and differences in management styles, rather than retaliatory animus, motivated S1's actions.
Complainant has asserted that S1 retaliated against her because she challenged S1 about the interpretation and application of EEO procedures. The record, however, reflects that Complainant's challenges constituted disagreements with the way that S1 managed the EEO program rather than objections to discriminatory practices. Compare Complainant v. Dep't of Def., EEOC Appeal No. 0120084008 (June 6, 2014) (EEO Specialist engaged in protected activity when she objected to intranet site that parodied event commemorating history of Native Americans and suggested that "Christmas Social" be renamed "Holiday Social" to avoid appearance of endorsing one particular religion) and Hairston v. Dep't of Educ., EEOC Appeal No. 0120071308 (Apr. 15, 2010) (EEO Specialist engaged in protected activity when, after reviewing agency's EEO program, he recommended that agency comply with Commission directives by requiring EEO Director to report directly to agency head) with Montgomery v. Dept of the Army, EEOC Petition No. 03A00044 (Apr. 17, 2002) (EEO Specialist who objected to superior's management of EEO program did not engage in protected activity where Commission declined to find that management of program was an unlawful practice and EEO Specialist's objections constituted insubordination rather than opposition to unlawful practice). To the extent that Complainant's involvement in the assessment report constituted opposition to discriminatory practices, the evidence does support her allegation that S1 acted against her because of the report. Accordingly, we find that Complainant has not shown that S1's reactions to the disagreements and the report constituted reprisal for protected EEO activity.
Hostile Work Environment
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 [complainant's] employment and create a hostile or abusive working environment." 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, 510 U.S. at 21-22. Whether the harassment is sufficiently severe to trigger a violation of Title VII must be determined by looking at all 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." Id. at 23.
To establish a claim of harassment, Complainant must show that: (1) she is a member of the statutorily protected class; (2) she 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 her statutorily protected class; (4) the harassment affected a term or condition of employment and/or had the purpose or effect of unreasonably interfering with the work environment and/or creating an intimidating, hostile, or offensive work environment; and (5) there is a basis for imputing liability to the employer. Humphrey v. U.S. Postal Serv., EEOC Appeal No. 01965238 (Oct. 16, 1998); 29 C.F.R. § 1604.11. Further, the incidents must have been "sufficiently severe or pervasive to alter the conditions of [Complainant's] employment and create an abusive working environment." Harris, 510 U.S. at 21. 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 (Mar. 8, 1994) (Enforcement Guidance on Harris). The evaluation "requires careful consideration of the social context in which particular behavior occurs and is experienced by its target." Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 81 (1998). The anti-discrimination laws are not a "general civility code." Id.
In this case, the record does not support a finding that the Agency subjected Complainant to discriminatory harassment. As noted above, the evidence does not establish that the incidents alleged by Complainant occurred because of her protected activity. A finding of discriminatory harassment is precluded based on our determination that Complainant has not shown that the Agency's actions were motivated by retaliatory animus. See Oakley v. U.S. Postal Serv., EEOC Appeal No. 01982923 (Sept. 21, 2000). Accordingly, we find that Complainant has not demonstrated that the Agency discriminated against her on the basis of reprisal.
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, which implemented the AJ's finding of no discrimination.
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
July 18, 2014
Date
1 Although the Agency's letter accepting the complaint for investigation identified June 15, 2009, as the date of the incident, Complainant's formal complaint stated that the incident occurred on July 15, 2009.
2 Complainant stated that, in 2008, she attended a meeting where S1, a complainant, and others accused her of mismanaging a 2005 or 2006 complaint because the complaint file was with the EEO Counselor rather than in the EEO Office. Complainant told the people in the meeting that, pursuant to regulations, complaint files came to the SRO EEO Office only if the complainant filed a formal complaint. The other people in the meeting disagreed with her.
------------------------------------------------------------
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186 | https://www.eeoc.gov/sites/default/files/decisions/2021_01_19/2019003060.pdf | 2019003060.pdf | PDF | application/pdf | 15,602 | Abe K.,1 Complainant, v. Elaine L. Chao, Secretary, Department of Transportation (Federal Highway Administration), Agency. | March 8, 2019 | Appeal Number: 2019003060
Background:
During the period at i ssue, Complainant worked as a Functional Team Lead, GS -13, at the
Agency’s Central Federal Lands Highway Division in Lakewood, Colorado.
On January 25, 2017, Complainant filed a formal EEO complaint claiming that the Agency
discriminated against him based on in reprisal for prior protected EEO activity when :
1. on March 15, 2016, Complainant learned that a document referencing his EEO
complaint, including his EEO complaint numbers had been left in a public place by
the bridge office printer; and
2. on September 14, 2016, Complainant learned that his supervisor had posted
appointments regarding his EEO activity on her shared calendar that was visible to
everyone throughout the organization on the following dates: June 19 and 29, 2015,
July 9 and 23, 2015 , September 10, 2015, and September 14, 2016.
The Agency dismissed both claim on procedural grounds. On appeal, Complainant only
contested the dismissal of claim 2 and clarified that he only challenged his supervisor’s
September 14, 2016 appointment post ing. The Commission affirmed the Agency’s dismissal of
claim 1 and reversed and remanded claim 2 to the Agency for investigation . See Jared F. v.
Dep’t of Transportation , EEOC Appeal No. 0120171815 (Oct. 3, 2017).
As indicated in the Agency’ s November 2, 2017 revised letter of acceptance, Complainant’s
complaint was defined as the following manner :
Whether Complainant was discriminated against based on reprisal for prior
protected EEO activity ,2 when on September 14, 2016, he learned that his
supervisor had posted appointments regarding his EEO act ivity on h er shared
calendar that was visible to everyone throughout the organization.
After the investigation of th e accepted claim , the Agency provided Complainant with a copy of
the re port of investigation and notice of the right to request a hearing before an EEOC
Administrative (AJ) or a final decision within thirty days of receipt of the correspondence.
Complainant withdrew his hearing request and requested a final decision.
On M arch 8, 2019, the Agency issued the instant final decision, pursuant to 29 C.F.R.
§ 1614.110(b) , finding no discrimination.
The instant appeal followed. On appeal, Complainant argues that the Agency failed to analyze
whether his complaint constituted a per se reprisal. Specifically, Complainant states that the
Agency failed to determine whether “divulging an employee’s EEO participation is the kind of
action that is unlikely to deter [him] or others from engaging in protected EEO activity.”
Complainant further asserts that his supervisor intentionally posted his EEO appointments on her
outlook calendar to “intimidate him, create animosity and a hostile work environment for him.”
2 Complainant testified that he had previously filed formal complaints against the Agency and he
identified the responsible management officials (“RMOs”) as the same RMOs in the instant
complaint.
Legal Analysis:
The Commission affirmed the Agency’s dismissal of
claim 1 and reversed and remanded claim 2 to the Agency for investigation . See Jared F. v.
Dep’t of Transportation , EEOC Appeal No. 0120171815 (Oct. 3, 2017).
As indicated in the Agency’ s November 2, 2017 revised letter of acceptance, Complainant’s
complaint was defined as the following manner :
Whether Complainant was discriminated against based on reprisal for prior
protected EEO activity ,2 when on September 14, 2016, he learned that his
supervisor had posted appointments regarding his EEO act ivity on h er shared
calendar that was visible to everyone throughout the organization.
After the investigation of th e accepted claim , the Agency provided Complainant with a copy of
the re port of investigation and notice of the right to request a hearing before an EEOC
Administrative (AJ) or a final decision within thirty days of receipt of the correspondence.
Complainant withdrew his hearing request and requested a final decision.
On M arch 8, 2019, the Agency issued the instant final decision, pursuant to 29 C.F.R.
§ 1614.110(b) , finding no discrimination.
The instant appeal followed. On appeal, Complainant argues that the Agency failed to analyze
whether his complaint constituted a per se reprisal. Specifically, Complainant states that the
Agency failed to determine whether “divulging an employee’s EEO participation is the kind of
action that is unlikely to deter [him] or others from engaging in protected EEO activity.”
Complainant further asserts that his supervisor intentionally posted his EEO appointments on her
outlook calendar to “intimidate him, create animosity and a hostile work environment for him.”
2 Complainant testified that he had previously filed formal complaints against the Agency and he
identified the responsible management officials (“RMOs”) as the same RMOs in the instant
complaint.
ANALYSIS AND FINDINGS
Disparate Treatment
A claim of disparate treatment is examined under the three -part analysis first enunciated in
McDonnell Douglas Corporation v. Green , 411 U.S. 792 (1973). For complainant to prevail, she
must first establish a prima facie of discrimination by presenting fa cts that, if unexplained,
reasonably give rise to an inference of discrimination, i.e., that a prohibited consideration was a
factor in the adverse employment action. See McDonnell Douglas , 411 U.S. at 802; Furnco
Construction Corp. v. Waters , 438 U.S. 56 7 (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 bear s 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 discr imination 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, th e 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); Washing ton v. Department
of the Navy , EEOC Petition No. 03900056 (May 31, 1990).
Complainant testified that he believed that his supervisor (“S1”) used her Outlook calendar to
disclosure his EEO activity in an effort to intimidate him , and that S1’s actions cau sed “rumors
within the Agency that affected his reputation and ruined his prospects to move within another
position within the Agency.” On September 14, 2016 , Complainant stated that S1 posted an
appointment titled “Deposition Prep” on her Outlook calendar and attached the details to the
appointment which were visible to all Federal Highway Administration employees. Complainant
explained that S1 had previously posted similar appointments on her Outlook calendar on the
following da tes:
June 1 9, 2015 – appointment titled “EEO case status”
June 29, 2015 – appointment titled “EEO Pre -hearing conference”
July 9, 2015 – appointment title d “EEO case prep for discovery”
July 23, 2015 – appointment titled “EEO call -rescheduled”
September 10, 2015 – appointment titled “EEO claim coordination .”
A review of these appointments shows there is no reference to Complainant’s name or
information otherwise identifying Complainant.
Complainant argued that because he was the only employee under S1’s superviso r who had
active EEO complaint s against S1 , everyone knew that the September 14, 2016 posting, as well
as the other prior postings, pertained to his EEO complaint.
Although S1 acknowledged in her 2017 affidavit that Complainant was the only employee in
past three years who had filed an EEO complaint against her, she d enied that she posted the
September 14, 2016 appointment to retaliate against Complainant because of his participation in
prior protected EEO activity . S1 clarified that on September 14, 20 16, legal counsel sent her a
meeting appointment, titled “Deposition Prep” and the appoint ment posted on her personal
Outlook calendar when she accepted the meeting . S1 further clarified that she was unaware, at
the time, of the Outlook privacy settings as her Outlook calendar was on the default setting .
Consequently, S1 indicated that she did not know her acceptance of the meeting could be viewed
or shared even though the meeting appointment was not on a shared calendar. However, S1
noted that the mee ting appointment did not contain information related to EEO or any identifying
or personal information about Complainant.
Complainant’s second -level supervisor (“S2”) corroborate d S1’s testimony that she was not the
originator of the September 14, 2016 meeting appointment and that she did not know how to
change her Outlook calendar settings to the private setting, so that her entire calendar was not
visible to everyone. S2 further indicated that he did not see any information in the September
14, 2016 m eeting appointment referencing Complainant.
Our review of the September 14, 2016 meeting appointment and attached email does not reflect
any references to an EEO complaint. Our review further indicates that Complainant is not
named or otherwise identifi ed in either document.
After careful consideration of the record, we con clude that neither during the investigation, nor
on appeal, has Complainant proven, by a preponderance of the evidence, that these proffere d
reasons for the disputed actions were a pretext for disparate treatment in reprisal for prior
protected EEO activity.
“Per Se” Reprisal
The Commission has held that the actions of a supervisor may be considered “per se ” reprisal
when the supervisor int imidates an employee and interferes with the employee's EEO activity in
any manner. See Binseel v. Dep't of the Army , EEOC Request No. 05970584 (Oct. 8, 1998).
Here, Complainant argues that S1’s actions constituted per se reprisal because “everyone knew ”
that Complainant was the only person who had active EEO complaints against S1. The record
reflects that one co-worker (“CW1”) testified that he was aware of Complainant’s EEO activity
because Complainant told him about it , and because CW1 was provided te stimony in
Complainant’s prior complaints. However, there is no thing on the September 14, 2016 meeting
appointment in Outlook that would have notified anyone viewing it that it was about an EEO
complaint or any matter related to Complainant.
Although the C ommission has held that certain acts may constitute per se reprisal, the matter
raised in this case does not rise to this level even if true, despite Complainant's contention to the
contrary.
New Allegation Raised on Appeal (harassment)
Finally, we note that on appeal Complainant raises a new allegation on appeal. Specifically,
Complainant asserts that he was subjected to discriminatory harassment in reprisal for prior
protected EEO activity. First, we note that the Agency’s November 2, 2017 revised lett er of
acceptance did not address a claim of harassment. Instead, the revised letter of acceptance
expressly indicated the sole claim accepted for investigation is the claim we have addressed
above. There is no evidence that Complainant challenged the acce ptance letter’s characterization
of his claim(s). Complainant is advised that if he wishes to now pursue the additional harassment
claim raised on appeal, he should initiate contact with an Agency EEO Counselor. The
Commissi on will not accept a new claim raised on appeal.
We AFFIRM the Agency’s final decision because the preponderance of the evidence of record
does not establish that unlawful retaliation occurred. | Abe K.,1
Complainant,
v.
Elaine L. Chao,
Secretary,
Department of Transportation
(Federal Highway Administration),
Agency.
Appeal No. 2019003060
Agency No. 1017 -27190 -FHWA -06
DECISION
The Equal Employment Opportunity Commission (EEOC or Commission) accepts
Complainant’s appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s March 8, 2019
final decision concerning an equal employment opportunity (EEO) complaint claiming
employment discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title VII),
as amended, 42 U.S.C. § 2000e et seq.
BACKGROUND
During the period at i ssue, Complainant worked as a Functional Team Lead, GS -13, at the
Agency’s Central Federal Lands Highway Division in Lakewood, Colorado.
On January 25, 2017, Complainant filed a formal EEO complaint claiming that the Agency
discriminated against him based on in reprisal for prior protected EEO activity when :
1. on March 15, 2016, Complainant learned that a document referencing his EEO
complaint, including his EEO complaint numbers had been left in a public place by
the bridge office printer; and
2. on September 14, 2016, Complainant learned that his supervisor had posted
appointments regarding his EEO activity on her shared calendar that was visible to
everyone throughout the organization on the following dates: June 19 and 29, 2015,
July 9 and 23, 2015 , September 10, 2015, and September 14, 2016.
The Agency dismissed both claim on procedural grounds. On appeal, Complainant only
contested the dismissal of claim 2 and clarified that he only challenged his supervisor’s
September 14, 2016 appointment post ing. The Commission affirmed the Agency’s dismissal of
claim 1 and reversed and remanded claim 2 to the Agency for investigation . See Jared F. v.
Dep’t of Transportation , EEOC Appeal No. 0120171815 (Oct. 3, 2017).
As indicated in the Agency’ s November 2, 2017 revised letter of acceptance, Complainant’s
complaint was defined as the following manner :
Whether Complainant was discriminated against based on reprisal for prior
protected EEO activity ,2 when on September 14, 2016, he learned that his
supervisor had posted appointments regarding his EEO act ivity on h er shared
calendar that was visible to everyone throughout the organization.
After the investigation of th e accepted claim , the Agency provided Complainant with a copy of
the re port of investigation and notice of the right to request a hearing before an EEOC
Administrative (AJ) or a final decision within thirty days of receipt of the correspondence.
Complainant withdrew his hearing request and requested a final decision.
On M arch 8, 2019, the Agency issued the instant final decision, pursuant to 29 C.F.R.
§ 1614.110(b) , finding no discrimination.
The instant appeal followed. On appeal, Complainant argues that the Agency failed to analyze
whether his complaint constituted a per se reprisal. Specifically, Complainant states that the
Agency failed to determine whether “divulging an employee’s EEO participation is the kind of
action that is unlikely to deter [him] or others from engaging in protected EEO activity.”
Complainant further asserts that his supervisor intentionally posted his EEO appointments on her
outlook calendar to “intimidate him, create animosity and a hostile work environment for him.”
2 Complainant testified that he had previously filed formal complaints against the Agency and he
identified the responsible management officials (“RMOs”) as the same RMOs in the instant
complaint.
ANALYSIS AND FINDINGS
Disparate Treatment
A claim of disparate treatment is examined under the three -part analysis first enunciated in
McDonnell Douglas Corporation v. Green , 411 U.S. 792 (1973). For complainant to prevail, she
must first establish a prima facie of discrimination by presenting fa cts that, if unexplained,
reasonably give rise to an inference of discrimination, i.e., that a prohibited consideration was a
factor in the adverse employment action. See McDonnell Douglas , 411 U.S. at 802; Furnco
Construction Corp. v. Waters , 438 U.S. 56 7 (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 bear s 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 discr imination 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, th e 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); Washing ton v. Department
of the Navy , EEOC Petition No. 03900056 (May 31, 1990).
Complainant testified that he believed that his supervisor (“S1”) used her Outlook calendar to
disclosure his EEO activity in an effort to intimidate him , and that S1’s actions cau sed “rumors
within the Agency that affected his reputation and ruined his prospects to move within another
position within the Agency.” On September 14, 2016 , Complainant stated that S1 posted an
appointment titled “Deposition Prep” on her Outlook calendar and attached the details to the
appointment which were visible to all Federal Highway Administration employees. Complainant
explained that S1 had previously posted similar appointments on her Outlook calendar on the
following da tes:
June 1 9, 2015 – appointment titled “EEO case status”
June 29, 2015 – appointment titled “EEO Pre -hearing conference”
July 9, 2015 – appointment title d “EEO case prep for discovery”
July 23, 2015 – appointment titled “EEO call -rescheduled”
September 10, 2015 – appointment titled “EEO claim coordination .”
A review of these appointments shows there is no reference to Complainant’s name or
information otherwise identifying Complainant.
Complainant argued that because he was the only employee under S1’s superviso r who had
active EEO complaint s against S1 , everyone knew that the September 14, 2016 posting, as well
as the other prior postings, pertained to his EEO complaint.
Although S1 acknowledged in her 2017 affidavit that Complainant was the only employee in
past three years who had filed an EEO complaint against her, she d enied that she posted the
September 14, 2016 appointment to retaliate against Complainant because of his participation in
prior protected EEO activity . S1 clarified that on September 14, 20 16, legal counsel sent her a
meeting appointment, titled “Deposition Prep” and the appoint ment posted on her personal
Outlook calendar when she accepted the meeting . S1 further clarified that she was unaware, at
the time, of the Outlook privacy settings as her Outlook calendar was on the default setting .
Consequently, S1 indicated that she did not know her acceptance of the meeting could be viewed
or shared even though the meeting appointment was not on a shared calendar. However, S1
noted that the mee ting appointment did not contain information related to EEO or any identifying
or personal information about Complainant.
Complainant’s second -level supervisor (“S2”) corroborate d S1’s testimony that she was not the
originator of the September 14, 2016 meeting appointment and that she did not know how to
change her Outlook calendar settings to the private setting, so that her entire calendar was not
visible to everyone. S2 further indicated that he did not see any information in the September
14, 2016 m eeting appointment referencing Complainant.
Our review of the September 14, 2016 meeting appointment and attached email does not reflect
any references to an EEO complaint. Our review further indicates that Complainant is not
named or otherwise identifi ed in either document.
After careful consideration of the record, we con clude that neither during the investigation, nor
on appeal, has Complainant proven, by a preponderance of the evidence, that these proffere d
reasons for the disputed actions were a pretext for disparate treatment in reprisal for prior
protected EEO activity.
“Per Se” Reprisal
The Commission has held that the actions of a supervisor may be considered “per se ” reprisal
when the supervisor int imidates an employee and interferes with the employee's EEO activity in
any manner. See Binseel v. Dep't of the Army , EEOC Request No. 05970584 (Oct. 8, 1998).
Here, Complainant argues that S1’s actions constituted per se reprisal because “everyone knew ”
that Complainant was the only person who had active EEO complaints against S1. The record
reflects that one co-worker (“CW1”) testified that he was aware of Complainant’s EEO activity
because Complainant told him about it , and because CW1 was provided te stimony in
Complainant’s prior complaints. However, there is no thing on the September 14, 2016 meeting
appointment in Outlook that would have notified anyone viewing it that it was about an EEO
complaint or any matter related to Complainant.
Although the C ommission has held that certain acts may constitute per se reprisal, the matter
raised in this case does not rise to this level even if true, despite Complainant's contention to the
contrary.
New Allegation Raised on Appeal (harassment)
Finally, we note that on appeal Complainant raises a new allegation on appeal. Specifically,
Complainant asserts that he was subjected to discriminatory harassment in reprisal for prior
protected EEO activity. First, we note that the Agency’s November 2, 2017 revised lett er of
acceptance did not address a claim of harassment. Instead, the revised letter of acceptance
expressly indicated the sole claim accepted for investigation is the claim we have addressed
above. There is no evidence that Complainant challenged the acce ptance letter’s characterization
of his claim(s). Complainant is advised that if he wishes to now pursue the additional harassment
claim raised on appeal, he should initiate contact with an Agency EEO Counselor. The
Commissi on will not accept a new claim raised on appeal.
We AFFIRM the Agency’s final decision because the preponderance of the evidence of record
does not establish that unlawful retaliation occurred.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0617)
The Commission may, in its discretion, reconsider the decision in this case if the Complainant or
the Agency submits a written request containing arguments or evidence which tend to establish
that:
1. The appellate decision in volved 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 b e 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 s tatement 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 Op erations, 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 Sec tor 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, unle ss 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 receiv e 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 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 with the civil acti on 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 a ttorney 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 16, 2020
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187 | https://www.eeoc.gov/sites/default/files/migrated_files/decisions/0120162098.txt | 0120162098.txt | TXT | text/plain | 18,661 | Darrell K.,1 Complainant, v. John Kerry, Secretary, Department of State, Agency. | May 17, 2016 | Appeal Number: 0120162098
Background:
At the time of events giving rise to this complaint, Complainant worked as a Foreign Service Officer (FS-04) at the Agency's Office of Energy Diplomacy in the Bureau of Energy Resources in the District of Columbia.
On May 2, 2016, Complainant filed a formal complaint alleging that the Agency subjected him to discrimination on the basis of disability (cognitive, dyslexia) when:
1. In October 2015, he was not selected for a promotion; and
2. On December 17, 2015, he received a Low Rating Statement ("LRS").
Complainant was passed over for promotion by the Foreign Service Selection Board ("the Board") in October 2015 in large part because of "deficiencies" in his written communication skills, including a failure to improve his proofreading over consecutive rating periods. Complainant alleges that he is more prone than others to these "deficiencies" because he has dyslexia, which he disclosed to the Agency and a few supervisors. Due to his dyslexia, he reads and writes at a markedly slower pace than his peers, and has a higher rate of typographical errors. He compensates for his slower pace by spending additional time on assignments that require reading and writing, and taking a course to improve his writing.
Although he was not selected for promotion in October 2015, Complainant believed he was performing his job well, noting that he consistently met all deadlines, including for written assignments. He did not realize how significantly the negative effects of his dyslexia impacted his employee evaluation ratings until December 17, 2015, when his Career Development Officer ("CDO") provided him with a Low Rating Statement ("LRS") issued by the Board. The LRS explicitly linked Complainant's writing skills to his nonselection in October 2015, stating: "The Board hopes that [Complainant] will take the time to address these deficiencies [in his written communication] so that with time, improved performance will enable him to be competitive for promotion." According to Complainant, writing skills comprise 5% of the skills required in his position description. Complainant argues that by focusing on writing ability over "actual work," the Board's metrics for issuing promotions and the LRS were discriminatory.
Complainant met with his CDO (at his CDO's request) to discuss the LRS further on January 16, 2016. Afterward, Complainant intended to pursue an EEO complaint, but in addition to his usual assignments, Complainant was preparing for two high profile international events. Complainant was extremely busy and did not attempt to contact an EEO counselor until February 10, 2016.
The Agency dismissed Complainant's complaint pursuant to 29 C.F.R. § 1614.107(a)(2), for untimely contact with an EEO counselor.
Legal Analysis:
the Commission shall extend the time limits when the individual shows that he or she was not notified of the time limits and was not otherwise aware of them, that he or she did not know and reasonably should not have known that the discriminatory matter or personnel action occurred, that despite due diligence he or she was prevented by circumstances beyond his or her control from contacting the Counselor within the time limits, or for other reasons considered sufficient by the agency or the Commission.
Under 29 C.F.R. § 1614.105(a)(1), complaints of discrimination should be brought to the attention of an Equal Employment Opportunity Counselor within forty-five (45) days of the date of the matter alleged to be discriminatory or, in the case of a personnel action, within forty-five (45) days of the effective date of the action. The Commission has adopted a "reasonable suspicion" standard (as opposed to a "supportive facts" standard) to determine when the forty-five (45) day limitation period is triggered. See Howard v. Dep't of the Navy, EEOC Request No. 05970852 (Feb. 11, 1999). Thus, the time limitation is not triggered until a complainant reasonably suspects discrimination, but before all the facts that support a charge of discrimination have become apparent. (Complainant v. United States Postal Serv., EEOC Appeal No. 0120120499 (Apr. 19, 2012)). In addition, where, as here, there is an issue of timeliness, "[a]n agency always bears the burden of obtaining sufficient information to support a reasoned determination as to timeliness." Guy v. Dep't of Energy, EEOC Request No. 05930703 (Jan. 4, 1994) (quoting Williams v. Dep't of Defense, EEOC Request No. 05920506 (Aug. 25, 1992)).
In the instant complaint, for Claim 1, we find no evidence that "reasonable suspicion" of discrimination existed in October 2015, when Complainant learned he was not promoted. However, the alleged discriminatory act in Claim 2, the Low Rating Statement ("LRS") linking Complainant's nonpromotion to his writing skills, in itself was sufficient to establish "reasonable suspicion" for both Claims 1 and 2 upon Complainant's receipt on December 17, 2015. Given that an LRS is a personnel action, the 45 day limitation period for Complainant to initiate contact with an EEO counselor was also automatically triggered on December 17, 2015, as the action became effective upon Complainant's receipt. (Complainant aptly notes in his appeal that the Agency erroneously based its calculations the date it issued the LRS, December 14, 2015.) Based on a start date of December 17, 2015, Complainant's opportunity to timely contact an EEO counselor regarding the instant complaint expired on February 1, 2016.
We remind the Agency that a complainant commences the EEO process by contacting an EEO Counselor and "exhibiting intent to begin the complaint process." See Hawkins v. Dep't of the Interior, EEOC Appeal No. 01990377 (July 29, 1999), Gates v. Dep't of the Air Force, EEOC Request No. 05910798 (Nov. 22, 1991) (quoting Moore v. Dep't of Treasury, EEOC Request No. 05900194 (May 24, 1990)). For purposes of timeliness, contact with an agency official who is "logically connected with the EEO process" is deemed a Counselor contact. Jones v. Dep't of the Army, EEOC Request No. 05900435 (Sept. 7, 1990); see Kemer v. General Serv. Admin., EEOC Request No. 05910779 (Dec. 30, 1991). Here, the Agency determined that Complainant did not initiate contact with an EEO counselor until February 23, 2015, when he actually met with a counselor and specifically requested to file a complaint. On appeal, Complainant successfully demonstrates that he exhibited an intent to initiate the EEO process on February 10, 2016, based on an email to the Agency's Office of Civil Rights ("OCR") stating "I would like to speak to someone about an EEO Complaint." We find that Complainant initiated contact with an EEO counselor on February 10, 2016, which still falls outside the February 1, 2016 deadline.2
Regardless of the discrepancies in the timeline, Complainant failed to timely contact an EEO Counselor. 3 We find it unnecessary to examine the Agency's alternate argument for dismissal, that Complainant did not timely file his Formal Complaint.
Request for an Extension
On appeal, Complainant asks that we excuse the delay in contacting an EEO counselor for a number of reasons under 29 C.F.R. §1614.604(c), supra. After thorough review, we find that the Agency provided sufficient evidence that none of these exceptions apply in the instant complaint. We especially reject Complainant's argument that because of his disability, when faced with a heavy workload he was "forced" to choose between pursuing his EEO complaint and timely completing his assignments.
When a complainant claims that a physical condition prevents him or her from meeting a particular filing deadline, we have held that in order to justify an untimely filing, a complainant must be so incapacitated by the condition as to render him or her physically unable to make a timely filing. See Zelmer v. United States Postal Serv., EEOC Request No. 05890164 (Mar. 8, 1989). Nothing in the statements provided by Complainant supports a finding that he was so incapacitated by his dyslexia throughout the applicable period as to prevent him from timely contacting an EEO Counselor. As discussed above (and Complainant successfully argued), a one sentence email was sufficient to establish EEO contact for timeliness purposes. By Complainant's own account, during that time, he "regularly worked 12+ hour days" on written assignments, which he completed on time "despite" his disability. Hence, Complainant was fully capable of timely contacting an EEO counselor.
We find Complainant failed to present adequate justification, pursuant to 29 C.F.R. § 1614.604(c), for extending the 45 day limitation period.
New Claims Raised on Appeal
The regulation set forth at 29 C.F.R. § 1614.107(a)(2) states, in pertinent part, that an agency shall dismiss a complaint which raises a matter that has not been brought to the attention of an
EEO Counselor, and is not like or related to a matter on which the complainant has received counseling. A later claim or compliant is "like or related" to the original complaint if the later claim or compliant adds to or clarifies the original complaint and could have reasonably been expected to grow out of the original compliant during the investigation. See Hurlocker v. Dep't of Veterans Affairs, EEOC Appeal No. 0120141346 (June 27, 2014); referencing Scher v. United States Postal Serv., EEOC Request No. 05940702 (May 30, 1995); Calhoun v. United States Postal Serv., EEOC Request No. 05891068 (Mar. 8, 1990).
On May 19 or 20, 2016, Complainant met with a representative at the Agency's Office of Civil Rights ("OCR") in an attempt to amend the instant complaint to include an additional allegation of discrimination, which occurred on May 12, 2016. Complainant argues that the May 12, 2016 allegation is "like and related" to the instant complaint, and as such it should be included and all claims in the instant complaint considered timely. On May 26, 2016, the Agency re-issued its decision, with an additional paragraph explaining that it could not review the May 12, 2016 allegation because Complainant had not discussed it with an EEO Counselor.4 The Agency forwarded the May 12, 2016 allegation for processing as a separate complaint.
After thorough consideration (including Complainant's extensive arguments on appeal), we find Claims 1 and 2 constitute discrete incidents, and the Agency properly referred the May 12, 2016 allegation as a separate complaint. As it will be addressed separately, we will not discuss the May 12, 2016 allegation further in relation to the instant complaint. However, Complainant may reference the instant complaint as background information.
Dissatisfaction with Agency Processing
Under 29 C.F.R. § 1614.107(a)(8), allegations of dissatisfaction with an agency's processing of a previously filed or pending complaint cannot be the subject of an EEO complaint. Our guidance provides that complaints about the processing of existing complaints should be referred to the agency official responsible for the quality of complaint processing, and/or processed as part of the original complaint. EEOC Management Directive for 29 C.F.R. Part 1614 (EEO-MD-110), Chap. 5 § IV.D, page 5-26 (Aug. 5, 2015); Morris v. Dep't of Def., EEOC Request No. 0520130316 (Aug. 27, 2013)
Once a complainant raises allegations of dissatisfaction regarding the processing of his or her pending complaint with the proper Agency official, that official must add a record of the complainant's concerns and any actions the Agency took to resolve the concerns, to the complaint file maintained on the underlying complaint. If no action was taken, the file must contain an explanation of the Agency's reason(s) for not taking any action. EEO MD-110, supra. If the complainant is still dissatisfied with the Agency's handling of his or her complaint, he or she may appeal the Agency official's response in conjunction with the underlying complaint.
To the extent Complainant's concerns have not already been addressed, we find that the dissatisfaction he describes did not arise in conjunction with the instant complaint. Specifically, Complainant cites difficulties reaching an EEO counselor and scheduling counseling to discuss the May 12, 2016 allegation, which was processed as a separate complaint. Complainant may pursue these allegations by timely contacting the proper Agency official, in reference to the separate complaint relating to the May 12, 2016 allegation.
Final Decision:
Accordingly, the Agency's final decision dismissing Complainant's complaint is AFFIRMED. | Darrell K.,1
Complainant,
v.
John Kerry,
Secretary,
Department of State,
Agency.
Appeal No. 0120162098
Agency No. DOS014016
DECISION
Complainant timely appealed to this Commission from the Agency's May 17, 2016 dismissal of his complaint of unlawful employment discrimination in violation of Section 501 of the Rehabilitation Act of 1973 ("Rehabilitation Act"), as amended, 29 U.S.C. § 791 et seq.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Foreign Service Officer (FS-04) at the Agency's Office of Energy Diplomacy in the Bureau of Energy Resources in the District of Columbia.
On May 2, 2016, Complainant filed a formal complaint alleging that the Agency subjected him to discrimination on the basis of disability (cognitive, dyslexia) when:
1. In October 2015, he was not selected for a promotion; and
2. On December 17, 2015, he received a Low Rating Statement ("LRS").
Complainant was passed over for promotion by the Foreign Service Selection Board ("the Board") in October 2015 in large part because of "deficiencies" in his written communication skills, including a failure to improve his proofreading over consecutive rating periods. Complainant alleges that he is more prone than others to these "deficiencies" because he has dyslexia, which he disclosed to the Agency and a few supervisors. Due to his dyslexia, he reads and writes at a markedly slower pace than his peers, and has a higher rate of typographical errors. He compensates for his slower pace by spending additional time on assignments that require reading and writing, and taking a course to improve his writing.
Although he was not selected for promotion in October 2015, Complainant believed he was performing his job well, noting that he consistently met all deadlines, including for written assignments. He did not realize how significantly the negative effects of his dyslexia impacted his employee evaluation ratings until December 17, 2015, when his Career Development Officer ("CDO") provided him with a Low Rating Statement ("LRS") issued by the Board. The LRS explicitly linked Complainant's writing skills to his nonselection in October 2015, stating: "The Board hopes that [Complainant] will take the time to address these deficiencies [in his written communication] so that with time, improved performance will enable him to be competitive for promotion." According to Complainant, writing skills comprise 5% of the skills required in his position description. Complainant argues that by focusing on writing ability over "actual work," the Board's metrics for issuing promotions and the LRS were discriminatory.
Complainant met with his CDO (at his CDO's request) to discuss the LRS further on January 16, 2016. Afterward, Complainant intended to pursue an EEO complaint, but in addition to his usual assignments, Complainant was preparing for two high profile international events. Complainant was extremely busy and did not attempt to contact an EEO counselor until February 10, 2016.
The Agency dismissed Complainant's complaint pursuant to 29 C.F.R. § 1614.107(a)(2), for untimely contact with an EEO counselor.
ANALYSIS AND FINDINGS
In pertinent part, our regulations under 29 C.F.R. §1614.107(a)(2) provide that an agency shall dismiss a complaint or a portion of a complaint that fails to comply with the applicable time limits contained in 29 C.F.R. §1614.105. However, 29 C.F.R. §1614.604(c) provides that an agency or the Commission shall extend the time limits when the individual shows that he or she was not notified of the time limits and was not otherwise aware of them, that he or she did not know and reasonably should not have known that the discriminatory matter or personnel action occurred, that despite due diligence he or she was prevented by circumstances beyond his or her control from contacting the Counselor within the time limits, or for other reasons considered sufficient by the agency or the Commission.
Under 29 C.F.R. § 1614.105(a)(1), complaints of discrimination should be brought to the attention of an Equal Employment Opportunity Counselor within forty-five (45) days of the date of the matter alleged to be discriminatory or, in the case of a personnel action, within forty-five (45) days of the effective date of the action. The Commission has adopted a "reasonable suspicion" standard (as opposed to a "supportive facts" standard) to determine when the forty-five (45) day limitation period is triggered. See Howard v. Dep't of the Navy, EEOC Request No. 05970852 (Feb. 11, 1999). Thus, the time limitation is not triggered until a complainant reasonably suspects discrimination, but before all the facts that support a charge of discrimination have become apparent. (Complainant v. United States Postal Serv., EEOC Appeal No. 0120120499 (Apr. 19, 2012)). In addition, where, as here, there is an issue of timeliness, "[a]n agency always bears the burden of obtaining sufficient information to support a reasoned determination as to timeliness." Guy v. Dep't of Energy, EEOC Request No. 05930703 (Jan. 4, 1994) (quoting Williams v. Dep't of Defense, EEOC Request No. 05920506 (Aug. 25, 1992)).
In the instant complaint, for Claim 1, we find no evidence that "reasonable suspicion" of discrimination existed in October 2015, when Complainant learned he was not promoted. However, the alleged discriminatory act in Claim 2, the Low Rating Statement ("LRS") linking Complainant's nonpromotion to his writing skills, in itself was sufficient to establish "reasonable suspicion" for both Claims 1 and 2 upon Complainant's receipt on December 17, 2015. Given that an LRS is a personnel action, the 45 day limitation period for Complainant to initiate contact with an EEO counselor was also automatically triggered on December 17, 2015, as the action became effective upon Complainant's receipt. (Complainant aptly notes in his appeal that the Agency erroneously based its calculations the date it issued the LRS, December 14, 2015.) Based on a start date of December 17, 2015, Complainant's opportunity to timely contact an EEO counselor regarding the instant complaint expired on February 1, 2016.
We remind the Agency that a complainant commences the EEO process by contacting an EEO Counselor and "exhibiting intent to begin the complaint process." See Hawkins v. Dep't of the Interior, EEOC Appeal No. 01990377 (July 29, 1999), Gates v. Dep't of the Air Force, EEOC Request No. 05910798 (Nov. 22, 1991) (quoting Moore v. Dep't of Treasury, EEOC Request No. 05900194 (May 24, 1990)). For purposes of timeliness, contact with an agency official who is "logically connected with the EEO process" is deemed a Counselor contact. Jones v. Dep't of the Army, EEOC Request No. 05900435 (Sept. 7, 1990); see Kemer v. General Serv. Admin., EEOC Request No. 05910779 (Dec. 30, 1991). Here, the Agency determined that Complainant did not initiate contact with an EEO counselor until February 23, 2015, when he actually met with a counselor and specifically requested to file a complaint. On appeal, Complainant successfully demonstrates that he exhibited an intent to initiate the EEO process on February 10, 2016, based on an email to the Agency's Office of Civil Rights ("OCR") stating "I would like to speak to someone about an EEO Complaint." We find that Complainant initiated contact with an EEO counselor on February 10, 2016, which still falls outside the February 1, 2016 deadline.2
Regardless of the discrepancies in the timeline, Complainant failed to timely contact an EEO Counselor. 3 We find it unnecessary to examine the Agency's alternate argument for dismissal, that Complainant did not timely file his Formal Complaint.
Request for an Extension
On appeal, Complainant asks that we excuse the delay in contacting an EEO counselor for a number of reasons under 29 C.F.R. §1614.604(c), supra. After thorough review, we find that the Agency provided sufficient evidence that none of these exceptions apply in the instant complaint. We especially reject Complainant's argument that because of his disability, when faced with a heavy workload he was "forced" to choose between pursuing his EEO complaint and timely completing his assignments.
When a complainant claims that a physical condition prevents him or her from meeting a particular filing deadline, we have held that in order to justify an untimely filing, a complainant must be so incapacitated by the condition as to render him or her physically unable to make a timely filing. See Zelmer v. United States Postal Serv., EEOC Request No. 05890164 (Mar. 8, 1989). Nothing in the statements provided by Complainant supports a finding that he was so incapacitated by his dyslexia throughout the applicable period as to prevent him from timely contacting an EEO Counselor. As discussed above (and Complainant successfully argued), a one sentence email was sufficient to establish EEO contact for timeliness purposes. By Complainant's own account, during that time, he "regularly worked 12+ hour days" on written assignments, which he completed on time "despite" his disability. Hence, Complainant was fully capable of timely contacting an EEO counselor.
We find Complainant failed to present adequate justification, pursuant to 29 C.F.R. § 1614.604(c), for extending the 45 day limitation period.
New Claims Raised on Appeal
The regulation set forth at 29 C.F.R. § 1614.107(a)(2) states, in pertinent part, that an agency shall dismiss a complaint which raises a matter that has not been brought to the attention of an
EEO Counselor, and is not like or related to a matter on which the complainant has received counseling. A later claim or compliant is "like or related" to the original complaint if the later claim or compliant adds to or clarifies the original complaint and could have reasonably been expected to grow out of the original compliant during the investigation. See Hurlocker v. Dep't of Veterans Affairs, EEOC Appeal No. 0120141346 (June 27, 2014); referencing Scher v. United States Postal Serv., EEOC Request No. 05940702 (May 30, 1995); Calhoun v. United States Postal Serv., EEOC Request No. 05891068 (Mar. 8, 1990).
On May 19 or 20, 2016, Complainant met with a representative at the Agency's Office of Civil Rights ("OCR") in an attempt to amend the instant complaint to include an additional allegation of discrimination, which occurred on May 12, 2016. Complainant argues that the May 12, 2016 allegation is "like and related" to the instant complaint, and as such it should be included and all claims in the instant complaint considered timely. On May 26, 2016, the Agency re-issued its decision, with an additional paragraph explaining that it could not review the May 12, 2016 allegation because Complainant had not discussed it with an EEO Counselor.4 The Agency forwarded the May 12, 2016 allegation for processing as a separate complaint.
After thorough consideration (including Complainant's extensive arguments on appeal), we find Claims 1 and 2 constitute discrete incidents, and the Agency properly referred the May 12, 2016 allegation as a separate complaint. As it will be addressed separately, we will not discuss the May 12, 2016 allegation further in relation to the instant complaint. However, Complainant may reference the instant complaint as background information.
Dissatisfaction with Agency Processing
Under 29 C.F.R. § 1614.107(a)(8), allegations of dissatisfaction with an agency's processing of a previously filed or pending complaint cannot be the subject of an EEO complaint. Our guidance provides that complaints about the processing of existing complaints should be referred to the agency official responsible for the quality of complaint processing, and/or processed as part of the original complaint. EEOC Management Directive for 29 C.F.R. Part 1614 (EEO-MD-110), Chap. 5 § IV.D, page 5-26 (Aug. 5, 2015); Morris v. Dep't of Def., EEOC Request No. 0520130316 (Aug. 27, 2013)
Once a complainant raises allegations of dissatisfaction regarding the processing of his or her pending complaint with the proper Agency official, that official must add a record of the complainant's concerns and any actions the Agency took to resolve the concerns, to the complaint file maintained on the underlying complaint. If no action was taken, the file must contain an explanation of the Agency's reason(s) for not taking any action. EEO MD-110, supra. If the complainant is still dissatisfied with the Agency's handling of his or her complaint, he or she may appeal the Agency official's response in conjunction with the underlying complaint.
To the extent Complainant's concerns have not already been addressed, we find that the dissatisfaction he describes did not arise in conjunction with the instant complaint. Specifically, Complainant cites difficulties reaching an EEO counselor and scheduling counseling to discuss the May 12, 2016 allegation, which was processed as a separate complaint. Complainant may pursue these allegations by timely contacting the proper Agency official, in reference to the separate complaint relating to the May 12, 2016 allegation.
CONCLUSION
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; EEO 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
November 2, 2016
__________________
Date
2 Complainant's alternate argument that the 45 day limitation period should be calculated based on the January 16, 2016 meeting with his CDO was properly rejected by the Agency.
3 We refer the Agency to Chapter 5 of the EEO Management Directive for 29 C.F.R. Part 1614, (Aug. 5, 2015) ("MD-110"), available at https://www.eeoc.gov/federal/directives/md110.cfm and for additional guidance, the Agency may contact its assigned EEO Compliance Officer at the EEOC Office of Federal Operations ("OFO").
4 Complainant did establish contact with an EEO Counselor for purposes of initiating a complaint. As discussed, an OCR Representative is an Agency Official "logically connected with the EEO process." See infra, citations omitted. Examples in the record of indicia of "logical connection" include that the EEO and OCR offices share space and EEO falls within OCR, and that communications related to Complainant's complaint, including the Agency's Final Decision, were issued through OCR. We urge the Agency to review Chapter 5 of the MD-110 or contact an OFO Compliance Officer for further clarification.
------------------------------------------------------------
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188 | https://www.eeoc.gov/sites/default/files/decisions/2020_08_10/0120181068.pdf | 0120181068.pdf | PDF | application/pdf | 47,914 | Rosamaria F.,1 Complainant, v. Thomas B. Modly , Acting Secretary, Department of the Navy, Agency. | February 6, 2018 | Appeal Number: 0120181068
Background:
At the time of events giving rise to this complaint, Complainant worked as a Secretary, NK -0318 -
II, for Strategic Systems Programs Headquarters at the Washington Navy Yard in Washington,
D.C.
On May 20, 2017, Complainant filed an EEO complaint alleging that the Agency discriminated
against her on the bases of race (African -American) and in reprisal for prior protected EEO activity
arising under Title VII when on or about March 3, 2017, her firs t line supervisor allegedly
permitted a working environment where she was subjected to a hostile work environment by a
contract employee (Information Technology Manager, Caucasian) .
During the EEO investigation, Complainant recounted several incidents of harassment by the
contract employee. Specifically, Complainant alleged that the contract employee told another
employee, “If you see [Complainant] turn the other way.” Complainant maintained that the
contract employee also referred to Complainant as “trou ble” and alleged ly told Complainant’s new
Assistant Branch Chief to “watch out for [Complainant].” She declared that the contract employee
sought to dissuade her from engaging in EEO activity by making statements that were critical of
her prior EEO activit y and even tried to remove a printer from her desk . She reasoned that the
contract employee may have learned about her prior EEO activity from her supervisor, an
individual whom she had previously named as a responsible management official and/or witness
in 18 EEO complaints (excluding instant complaint). Complainant indicated that she became very
suspicious about the true motivations of the contract employee when the Agency’s EEO counselor
only spoke to her supervisor and the Assistant Branch Chief during the informal EEO process and
did not interview the contract employee or other witnesses. She emphasized that management did
not respond to her cries for help and that the Agency’s harassment policies only address sexual
harassment and never nonsexual haras sment.
At the conclusion of the investigation, the Agency provided Complainant with a copy of the report
of investigation and notice of her right to request a hearing before an EEOC Administrative Judge
(AJ). In accordance with Complainant’s request, the Agency issued a final decis ion pursuant to
29 C.F.R. § 1614.110(b). The decision concluded that Complainant failed to prove that the
Agency subjected her to discrimination as alleged.
Legal Analysis:
the Commission
MODIFIES and REMANDS the Agency’s final decision for furth er processing .
ISSUES PRESENTED
Whether the Agency subjected Complainant to discriminatory harassment on the bases of race
(African -American) and reprisal when her first -line supervisor allegedly permitted a working
environment where she was subjected to a hostile work environment by a contract employee.
Whether the Agency’s anti -harassment policy adequately addresses the Agency’s legal obligation
to prevent harassment in the workplace in accordance with the Commission’s Management
Directive 715 (MD -715).
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Secretary, NK -0318 -
II, for Strategic Systems Programs Headquarters at the Washington Navy Yard in Washington,
D.C.
On May 20, 2017, Complainant filed an EEO complaint alleging that the Agency discriminated
against her on the bases of race (African -American) and in reprisal for prior protected EEO activity
arising under Title VII when on or about March 3, 2017, her firs t line supervisor allegedly
permitted a working environment where she was subjected to a hostile work environment by a
contract employee (Information Technology Manager, Caucasian) .
During the EEO investigation, Complainant recounted several incidents of harassment by the
contract employee. Specifically, Complainant alleged that the contract employee told another
employee, “If you see [Complainant] turn the other way.” Complainant maintained that the
contract employee also referred to Complainant as “trou ble” and alleged ly told Complainant’s new
Assistant Branch Chief to “watch out for [Complainant].” She declared that the contract employee
sought to dissuade her from engaging in EEO activity by making statements that were critical of
her prior EEO activit y and even tried to remove a printer from her desk . She reasoned that the
contract employee may have learned about her prior EEO activity from her supervisor, an
individual whom she had previously named as a responsible management official and/or witness
in 18 EEO complaints (excluding instant complaint). Complainant indicated that she became very
suspicious about the true motivations of the contract employee when the Agency’s EEO counselor
only spoke to her supervisor and the Assistant Branch Chief during the informal EEO process and
did not interview the contract employee or other witnesses. She emphasized that management did
not respond to her cries for help and that the Agency’s harassment policies only address sexual
harassment and never nonsexual haras sment.
At the | Rosamaria F.,1
Complainant,
v.
Thomas B. Modly ,
Acting Secretary,
Department of the Navy,
Agency.
Appeal No. 0120181068
Agency No. DON -17-00030 -01579
DECISION
On February 6, 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
January 8, 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
MODIFIES and REMANDS the Agency’s final decision for furth er processing .
ISSUES PRESENTED
Whether the Agency subjected Complainant to discriminatory harassment on the bases of race
(African -American) and reprisal when her first -line supervisor allegedly permitted a working
environment where she was subjected to a hostile work environment by a contract employee.
Whether the Agency’s anti -harassment policy adequately addresses the Agency’s legal obligation
to prevent harassment in the workplace in accordance with the Commission’s Management
Directive 715 (MD -715).
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Secretary, NK -0318 -
II, for Strategic Systems Programs Headquarters at the Washington Navy Yard in Washington,
D.C.
On May 20, 2017, Complainant filed an EEO complaint alleging that the Agency discriminated
against her on the bases of race (African -American) and in reprisal for prior protected EEO activity
arising under Title VII when on or about March 3, 2017, her firs t line supervisor allegedly
permitted a working environment where she was subjected to a hostile work environment by a
contract employee (Information Technology Manager, Caucasian) .
During the EEO investigation, Complainant recounted several incidents of harassment by the
contract employee. Specifically, Complainant alleged that the contract employee told another
employee, “If you see [Complainant] turn the other way.” Complainant maintained that the
contract employee also referred to Complainant as “trou ble” and alleged ly told Complainant’s new
Assistant Branch Chief to “watch out for [Complainant].” She declared that the contract employee
sought to dissuade her from engaging in EEO activity by making statements that were critical of
her prior EEO activit y and even tried to remove a printer from her desk . She reasoned that the
contract employee may have learned about her prior EEO activity from her supervisor, an
individual whom she had previously named as a responsible management official and/or witness
in 18 EEO complaints (excluding instant complaint). Complainant indicated that she became very
suspicious about the true motivations of the contract employee when the Agency’s EEO counselor
only spoke to her supervisor and the Assistant Branch Chief during the informal EEO process and
did not interview the contract employee or other witnesses. She emphasized that management did
not respond to her cries for help and that the Agency’s harassment policies only address sexual
harassment and never nonsexual haras sment.
At the conclusion of the investigation, the Agency provided Complainant with a copy of the report
of investigation and notice of her right to request a hearing before an EEOC Administrative Judge
(AJ). In accordance with Complainant’s request, the Agency issued a final decis ion pursuant to
29 C.F.R. § 1614.110(b). The decision concluded that Complainant failed to prove that the
Agency subjected her to discrimination as alleged.
ANALYSIS AND FINDINGS
As this is an appeal from a decision issued without a hearing, pursuant to 29 C.F.R. § 1614.110(b),
the Agency ’s decision is subject to de novo review by the Commission. 29 C.F.R. § 1614.405(a).
See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD -
110), at Chapter 9, § VI.A. (Aug. 5, 2015) (expl aining 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, in cluding 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”).
Harassment Claims
For Complainant to prevail on her allegation of harassment, she must show that: (1) she belongs
to a statutorily protected class; (2) she 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 her statu torily protected class; (4) the harassment affected a term or condition of
employment and/or had the purpose or effect of unreasonably interfering with the work
environment and/or creating an intimidating, hostile, or offensive work environment; and (5) th ere
is a basis for imputing liability to the Agency. See Henson v. City of Dundee , 682 F.2d 897 (11th
Cir. 1982). The harasser ’s conduct should be evaluated from the objective viewpoint of a
reasonable person in the victim's circumstances. Enforcement Guidance on Harris v. Forklift
Systems, Inc. , EEOC Notice No. 915.002 at 6 (Mar. 8, 1994). Further, the incidents must have
been “sufficiently severe or pervasive to alter the conditions of complainant ’s employment and
create an abusive working environment .” Harris v. Forklift Systems , Inc. , 510 U.S. 17, 21 (1993);
see also Oncale v. Sundowner Offshore Services, Inc. , 23 U.S. 75 (1998).
To establish a claim of retaliatory harassment by a coworker (in addition to showing that the
harassment is motivated by protected EEO conduct), Complainant must show that: (1) the
coworker ’s retaliatory conduct is sufficiently severe so as to dissuade a reasonable worker from
making or supporting a charge of discrimination; (2) supervisors or members of management have
actual or constructive knowledge of the coworker ’s retaliatory behavior; and (3) supervisors or
members of management have condoned, tolerated, or encouraged the acts of retaliation, or have
responded to the complaints so inadequately that the response manifests indifference or
unreasonableness under the circumstances. Hawkins v. Anheuser Busch, Inc. , 517 F.3d 321 (6th
Cir.2008); See Burlington Northern & Santa Fe Railway Co. v. White , 548 U.S. 53, 68 (2006); see
also, Owen v. Peake , 2008 WL 4449011, at 4 (S.D. Ohio 2008); Satterfield v. Karnes , 736 F. Su pp.
2d 1138, 1170 (S.D. Ohio 2010).
After careful consideration of the record, we conclude that the Agency properly found that
Complainant failed to persuasively show that she was subjected to a hostile work environment . In
reaching this conclusion, we co nsidered Complainant’s contention that the contract employee
subjected her to harassment on the bases of race and reprisal; however, we find that the
preponderant evidence fails to establish a causal link between the contract employee’s actions and
Complai nant’s protected characteristics.2
Regarding the printer incident , we note that the contract employee stated that he allowed
Complainant to keep her printer as a courtesy even th ough he was technically required to take
away Complainant’s printer because a Presidential Directive required agencies to reduce their IT
equipment footprints.
2 Because Complainant has failed to demonstrate a causal link between the alleged harassment and
her protected characteristics, we need not consider whether the alleged 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, hosti le, or offensive work environment .
The Chief Information Officer, in contrast, averred that the contract employee removed
Complainant’s printer because the Agency implemented a “Printer Reduction Plan .” While we
note that there is a discrepancy as to whether the contract employee removed Complainant’s
printer, we find that the preponderant evidence fails to show that the contract employee acted with
discriminatory or retaliatory motive with regard to Comp lainant’s printer.
As for the alleged remarks, the record reflects that the contract employee admitted that he said,
“Here comes trouble,” as Complainant approached him ; however, he explained that he made the
comment in jest because Complainant always tu rned to him for assistance with IT issues even
though he did not deal with everyday IT issues. The contract employee, however, outright denied
telling Complainant’s colleagues to “turn the other way” and “watch out for her.” While we
acknowledge Complainan t’s disagreement with the contract employee’s explanations, we note that
Complainant requested a final decision from the Agency. In so doing, Complainant waived her
right to request a hearing before an EEOC Administrative Judge, where she could have engage d
in discovery and crossed -examined witnesses such as the contract employee. Therefore, we can
only evaluate the facts based on the weight of the evidence presented to us. Based on the totality
of the record before us, we find that Complainant has not esta blished that she was subjected to
harassment on the bases alleged.
Breach of EEO Confidentiality
Notwithstanding our finding of no discrimination with regard to Complainant’s alleged harassment
claim s, we find that the Agency subjected Complainant to discrimination on the basis of reprisal
when Complainant’s supervisor revealed Complainant’s protected EEO activity to the Fire Control
and Guidance Branch Deputy . We remind the Agency that complainants ar e generally entitled to
confidentiality with regard to their EEO complaints.3 Our review of the affidavit from the Fire
Control and Guidance Branch Deputy shows that the Agency fell short of its legal obligation to
ensure confidentiality.
As a general ma tter, t he statutory anti -retaliation provisions prohibit any adverse treatment that is
based on a retaliatory motive and is reasonably likely to deter a reasonable employee from
engaging in protected activity. Burlington N. and Santa Fe Ry. Co. v. White , 548 U.S. 53 (2006).
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 Guidance on Retaliation and Related Issues , EEOC Notice No. 915.004
(Enforcement Guidance on Retaliation ), at § II. B. (Aug. 25, 2016).
3 We note that an agency cannot guarantee complete confidentiality, because it cannot conduct an
effective investigation without revealing certain information to the alleged harasser and potential
witnesses. However, info rmation about the allegation of harassment should be shared only with
those who need to know about it. Records relating to harassment complaints should be kept
confidential on the same basis. See Enforcement Guidance on Retaliation , Part
V(C)(1)(c) (“Confidentiality”).
Given the importance of maintaining “unfettered access to [the] statutory remedial mechanisms”
in the anti -retaliation provisions, we have found a broad range of actions to be retaliatory . For
example, we have held that a supervisor threatening an employee by saying , “What goes around,
comes around” when discussing an EEO complaint constitutes reprisal. Vincent v. U.S. Postal
Serv. , EEOC Appeal No . 0120072908 (Aug. 3, 2009), req. for recon s. den ., EEOC Request No.
0520090654 (Dec. 16, 2010). We have also found that a supervisor attempting to counsel an
employee against pursuing an EEO complaint “as a friend,” even if intended innocently, is reprisa l.
Woolf v. Dep’t of Energy , EEOC Appeal No. 0120083727 (June 4, 2009) (violation found when
a Labor Management Specialist told the complainant, “as a friend,” that her EEO claim would
polarize the office).
Similarly, the Commission has held that disclosure of EEO activity by a supervisor to coworkers
constitutes reprisal. 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 Melodee 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 EE O activity to others) . We have also found
reprisal where a human resources (HR) employee inadvertently negatively left a message on a
complainant ’s voicemail regarding the settlement of a prior EEO complaint. Complainant v. Dep’t
of Justice , EEOC Appeal No . 0720120032 (May 1, 2014) (complainant subjected to retaliation
when a HR employee and coworker inadvertently left message on complainant ’s work voicemail
berating her and using strong language while discussing settlement of complainant ’s prior EEO
compla int);
In this case, the record clearly shows that the Fire Control and Guidance Branch Deputy, when
questioned about how she learned about Complainant’s prior EEO activity, responded with the
following: “I was told by the Branch Head at the time, [Compla inant’s supervisor], that
[Complainant] has made EEO complaints in the past.” See Affidavit of T.J.Y., Complaint File , pg.
9. By the Agency ’s own admission, the Fire Control and Guidance Branch Deputy did not
supervise Complainant. See Memorandum from Agency Representative, id. at pg. 5. As such,
Complainant’s supervisor should not have disclosed Complainant’s prior EEO activity to the Fire
Control and Guidance Branch Deputy. We find that this disclosure, on its face, discourages
partic ipation in the EEO process and constitutes reprisal.
In reaching this conclusion, we are mindful that Complainant did not allege that she was subjected
to discrimination on the basis of reprisal when her supervisor disclosed her protected EEO activity
to the Fire Control and Guidance Branch Deputy . Nevertheless, in our prior decisions, we have
found reprisal even where a complainant did not claim reprisal . For example, in Light v. Dep’t of
Vet. Aff. , EEOC Appeal No. 0120111229 (Nov. 22, 2011), the Commission affirmed the agency’s
finding of reprisal when complainant’s second -level supervisor admitted to telling complainant
that she took offense at complainant’s complaints about discrimina tion. req. for recon s. den .,
EEOC Request No. 0520120207 (June 6, 2012).
Though the complainant in Light did not raise reprisal as a basis, the Commission affirmed the
agency’s finding that the evidence developed during the EEO investigation violated th e “letter and
spirit of EEO law which requires agencies to promote and support the full realization of equal
employment opportunity.” As in Light , supra , we too conclude that the evidence in this case
manifestly demonstrates a violation of the “letter and spirit of EEO law which requires agencies
to promote and support the full realization of equal employment opportunity.” The only question
that remains for us to decide is the appropriate remedy.
To remedy findings of discrimination, the Commission is au thorized to award compensatory
damages as part of “make whole” relief for a complainant . However, not all violations necessarily
entitle a complainant to individual relief. Vincent v. U.S. Postal Serv. , EEOC Appeal No.
0120072908 (Aug. 3, 2009) (citing Binseel v. Dep’t of the Army , EEOC Request No. 05970584
(Oct. 8, 1998)). Rather, the action giving rise to the damages must be intentional. Id.
Our prior decisions establish that complainants are entitled to compensatory damages for the
unlawful disclosur e of their EEO activity. For example, in Light , supra , we awarded compensatory
damages even though Complainant did not prevail on any of her individual claims of
discrimination . In rejecting the agency’s conclusion that complainant was not entitled to
comp ensatory damages because she did not prevail on her underlying claims, we expressly found
that the complainant was indeed entitled to compensatory damages because the agency’s actions
were likely to deter protected activity by complainant or others. Id.
The Commission has also awarded compensatory damages even where the agency claimed that
the unlawful disclosure of a complainant’s EEO activity was inadvertent. See Candi R. v. Envtl.
Prot. Agency , EEOC Appeal No. 0120171394 (Sept. 14, 2018) (holding that the asserted
inadvertent nature of the disclosure of complainant ’s EEO activity did not negate the fact that
sending these emails to all her colleagues would be reasonably likely to deter an employee from
engaging in EEO activity and therefore constitute d reprisal warranting the imposition of
compensatory damages); req. for recon s. den ., EEOC Request No. 2019000393 (Feb. 8, 2019) . We
shall do the same in this case, as it clear from the record that Complainant’s supervisor acted
affirmatively ( i.e., made the disclosure) to unlawfully disclose Complainant’s protected EEO
activity. See also Melodee M., supra .
For the above reasons, we find that Complainant was subjected to unlawful reprisal in the
disclosure of her EEO activity by her supervisor and that compe nsatory damages may be awarded
should Complainant be able to show she suffered a compensable harm as a result of the disclosure .
Sufficiency of the Agency’s Anti-Harassment Policy
As we have serious concerns regarding the Agency’s handling of harassment claims, particular ly
with regard to the Agency’s legal obligation to ensure the confidentiality of such claims, we take
this opportunity to review the Agency’s anti -harassment policy in its entirety. See Executive Order
11478, Sec. 3 (“The Equal Employment Opportunity Commission shall be responsible for
directing and furthering the implementation of the policy of the Government of the United States
to provide equal opportunity in Federal employment for all employees or a pplicants for
employment.”). After careful consideration of the record, we find that the Agency’s anti-
harassment policy does not adequately address the Agency’s legal obligation to prevent
harassment in the workplac e.4 We conclude that the Agency’s anti -harassment policy is not in
accord with the Commission’s Management Directive 715 (MD -715) because the Agency’s policy
statement does not effectively communicate EEO policies and procedures regarding harassment .
Because the preponderant evidence suggests this failure may have contributed to the unlawful
disclosure of Complainant’s protected EEO activity , as discussed above, we remind the Agency
of its legal obligations as set forth below and direct the Agency to comply wi th the remedial actions
listed in the Order herein.
Federal Agencies Are Legally Obligated to Establish and Maintain Effective Anti -Harassment
Programs
The Commission’s MD-715 is the policy guidance which the Commission provides to federal
agencies for their use in establishing and maintaining effective programs of equal employment
opportunity under Title VII and the Rehabilitation Act . MD -715 provides a roadmap for ensuring
that all employees and applicants for emp loyme nt enjoy equality of opportunity in the federal
workplace regardless of race, sex, national origin, color, religion, disability , or reprisal for
engaging in prior protected EEO activity. Compliance with MD -715 is mandatory for all Executive
agencies . See MD-715 (“Responsibilities”) ( “Agency Heads are responsible for the following: 1.
Ensuring compliance with this Directive and those implementing instructions issued by EEOC in
accordance with existing law and authority. ”). See also 29 C.F.R. § 1614.103(b)(2 ) (“This part
applies to… Executive agencies as defined in 5 U.S.C. 105…” ); and 29 C.F.R. § 1614.102(e)
(“Agency [EEO] programs shall comply with this part and the Management Directives and
Bulletins that the Commission issues.”) (emphasis added) .
It is critical to understand the legal requirements with which agencies must comply in order to
avoid liability for harassment . Following the U nited States Supreme Court’s decision s in Faragher
v. City of Boca Raton , 524 U.S. 775 (1998) and Burlington Indus . v. Ellerth , 524 U.S. 742 (1998) ,
the Commission issued Enforcement Guidance: Vicarious Employer Liability for Unlawful
Harassment by Supervisors in 1999, advising employers (both public and private sector) to
establish anti -harassment policies that contain, at a minimum, the following elements:
• A clear explanation of prohibited conduct, including a reference to all of the protected
bases;
• Assurance that employees who make claims of harassment or provide information related
to such claims will be protected against retaliation;
• A clearly described complaint process that provides accessible avenues for complainants;
• Assurance that to the ext ent possible, the employer will protect the confidentiality of the
individuals bringing harassment claims;
4 We note that in the Report of Investigation Complainant raised concerns about the lack of
information about non -sexual harassment being posted in her workplace.
• A complaint process that provides a prompt, thorough, and impartial investigation; and
• Assurance that the employer will take immediate and appropri ate corrective action when it
determines that harassment has occurred.
The Commission subsequently issued MD -715 on October 1, 2003 , which applied the minimum
standards and guidelines set forth in Faragher , supra and Ellerth , supra to the federal sector (i.e.,
federal agencies). See Model EEO Programs Must Have An Effective Anti -Harassment Program ,
n. 8.5 Sections II (A) and (C) of MD-715 expressly require federal agencies to establish and
maintain effective affirmative programs of equal employment opportunity, which show
demonstrated commitment from agency leadership and ensure management and program
accountability. To this end , agencies must issue a written policy stateme nt signed by the agency
head that expresses commitment to EEO and a workplace free of discriminatory harassment, and
the development of a comprehensive anti -harassment policy to prevent harassment on all protected
bases, including race, color, religion, se x (sexual or nonsexual), national origin, age, disability,
and reprisal. In this regard, a comprehensive anti-harassment policy that complies with MD -715
should : establish a separate procedure outside of the EEO complaint process; require a prompt
inquiry of all harassment allegations to prevent or eliminate conduct before it rises to the level of
unlawful harassment; establish a firewall between the EEO Director and the Anti -Harassment
Coordinator to avoid a conflict of interest; and ensure that the EEO Office informs the anti -
harassment program of all EEO counseling activity alleging harassment. See Instructions to
Federal Agencies for MD -715 Section I The Model EEO Program , Part III. Element C (B); see
also Enforcement Guidance: Vicarious Employer Liability for Unlawful Harassment by
Supervisors , Part V(C)(1)(“Policy and Complaint Procedure”).
It is simply not enough to create an anti -harassment policy. MD -715 expressly requires agencies
to effectively communicate EEO policies and procedures to all employees. Specifically, agencies
must inform their employees of their rights and responsibilities pursuant to the EEO process, anti -
harassment program, alternative d ispute resolution (ADR) process, reasonable accommodation
program, and behaviors that could result in discipline. Methods of dissemination include training,
webinars, brochures, emails, or other types of written communication. Instructions to Federal
Agenc ies for MD -715 Section I The Model EEO Program , Part I. Element A (B).
We remind agencies that failure to effectively communicate anti-harassment policies not only
violates MD -715 but may also expose them to liability. In this regard, we note that the first prong
of the affirmative defense for harassment liability under Faragher , supra , and Ellerth , supra ,
requires a showing by the employer that it undertook reasonable care to prevent and promptly
correct harassment.
5 MD-715 provides that “[t]he EEOC will also supplement this Directive o n an as -needed basis
through the issuance of additional guidance and technical assistance.” See MD-715
(“Introduction”). Also, o ur report, Model EEO Programs Must Have An Effective Anti -
Harassment Program, is available at https://www.eeoc.gov/federal/model _eeo_programs.cfm.
Such reasonable care generally requires an employer to establish, disseminate, and enforce an anti -
harassment policy and complaint procedure and to take other reasonable steps to prevent and
correct harassment. We emphasize that a federal agency’s formal, internal EEO complaint process
does not, by itself, fulfill its obligation to exercise reasonable care. That process only addresses
complaints of violations of the federal EEO laws, while the Court, in Ellerth , made clear that an
employer should encourage employees “to report harassing conduct before it becomes severe or
pervasive.” Ellerth , 118 S. Ct. at 2270. Furthermore, the EEO process is designed to assess whether
the agency is liable for unlawful discrimination and does not necessarily fulfill the agency’s
obligation to undertake i mmediate and appropriate corrective action. See Enforcement Guidance :
Vicarious Employer Liability for Unlawful Harassment by Supervisors at n. 57.
In this case, while we acknowledge that the Agency issued a Workplace Anti -Harassment Policy
Statement on May 1, 2018 , outlining its obligation to prevent harassment, we conclude that this
policy fails to effectively communicate EEO policies and procedures in accordance with MD -715
because it does not : 1) clearly establish the complaint procedure, including the appropriate
channels for filing a complaint , that is separate from the EEO process ; and 2) ensure confidentiality
to the extent possible.
Failure to Clearly Describe the Complaint Procedure
Regarding the first deficiency, we note that the A gency’s Workplace Anti -Harassment Policy
Statement states that “any Sailor, Marine, or civilian employee who encounters workplace
harassment should report the incident through appropriate channels.” As noted above , however,
MD-715 require s agencies to clearly inform their employees of their rights and responsibilities
pursuant to their anti-harassment program s. While we acknowledge that the Agency’s policy
statement informs employees of their right to “report the incident through appropriate channels,”
we find this rather vague statement to be inconsistent with MD -715 because it does not notify
employees of who they may approach to raise claims. As explained in our report , Model EEO
Programs Must Have An Effective Anti -Harassment Program , a model EEO pr ogram must clearly
describe the complaint process, particularly the agency officials who can receive harassment
claims. We further explained in our report that agencies, in establishing model EEO programs,
should consider designat ing at least one official outside an employee ’s chain of command to accept
claims of harassment. Indeed, agencies should ideally provide multiple points of contact for the
employee, such that all claims need not go through the chain of command. In this case, it is clear
that the Agency did not designate anyone to be the “go to” person for reporting harassment , much
less multiple points of contact .6
6 We acknowledge that the ROI contains PowerPoint slides titled “EEO Essentials for Non -
Supervisory Personnel” that contains the contact information for the Agency’s EEO personnel.
ROI, pg. 000122. We emphasize, however, that MD -715 sti ll requires agencies to establish and
maintain written anti -harassment policies consistent with MD -715.
We emphasize the importance of clearly delineating channels of communication for reporting
harassment, particul arly in light of cases such as this where a complainant does not feel
comfortable approaching the very people who are responsible for the conduct they are reporting
or have reported in the past.7
Moreover, we note that agencies, as part of their legal obligation to establish procedures to prevent
all forms of discrimination, including harassment, must identify the investigation process,
including where to file the complaint, who will conduct the in vestigation, and who will make the
decision for corrective action. See Model EEO Programs Must Have An Effective Anti -
Harassment Program , Part I (C). Here, our review of the Agency’s Workplace Anti -Harassment
Policy Statement , shows that the Agency simply noted that its anti -harassment policy is “separate
and apart from any administrative, negotiated grievance, or statutory complaint process that covers
allegations of harassment, such as the Equal Employment Opportunity complaint process.” There
is no menti on of where an employee must go to file a complaint, who will conduct the
investigation, and who will make the decision for corrective action. To fulfill its legal obligations
under MD -715, the Agency should develop complaint procedures that are separate f rom the EEO
process and clearly establish the complaint procedure in accordance with our guidelines . See
Model EEO Programs Must Have An Effective Anti -Harassment Program .
To establish a clearly -described complaint process, the policy must contain the time frames and
responsible officials for the intake, investigation, and decision -making stages of the process. Two
EEOC appellate decisions provide guidelines for time frames involving prompt investigations and
immediate corrective actions. For the investigation to be prompt, an EEOC decision found the
agency should have started the investigation within 10 days of receiving notice of a harassment
allegation. See Complainant v. Dep’t of Veterans Affairs , EEOC Appeal No. 0120123232 (May
21, 2015) ; see also MD-715, Part G, Question C.2.a.5 . As to immediate corrective actions, another
EEOC decision found the agency should have reached a decision and taken corrective action within
60 calendar days of receiving notice of the allegation. See Tammy S. v. Dep’t of Defense (Defense
Intelligence Agency) , EEOC Appeal No. 0120084008 (June 6, 2014). As such, the Agency’s
policy must include time frames for the intake, investigation, and dec ision -making stages of the
anti-harassment complaint process.
Failure to Ensure Confidentiality to the Extent Possible
Finally, with regard to the second deficiency , we again remind the Agency that complainants are
generally entitled to confidentiality with regard to not only their EEO com plaints , but their claims
of harassment as well . Indeed, the right to confidentiality is an important hallmark of a model EEO
program.
7 In her rebuttal to her supervisor’s affidavit, Complainant stated that she did not discuss the
contract employee’s comments with her supervisor because, for all she knew, her supervisor could
have been the person who discussed her prior protected EEO acti vity with the contract employee,
which led the contract employee to call her “trouble.” ROI, pg. 239.
As ex plained in our Enforcement Guidanc e: Vicarious Employer Liability for Unlawful
Harassment by Supervisors , an employer should clearly inform its employees that it will protect
the confidentiality of harassment allegations to the extent possible. See Enforcement Guidan ce:
Vicarious Employer Liability for Unlawful Harassment by Supervisors ,, Part
V(C)(1)(c)(“Confidentiality”) . While we recognize that an employer cannot guarantee complete
confidentiality, since it cannot conduct an effective investigatio n without revealing certain
information to the alleged harasser and potential witnesses, information about the allegation of
harassment should be shared only with those who need to know about it. Records relating to
harassment complaints should be kept con fidential on the same basis. Id. Federal agencies, as part
of their legal obligation to establish and maintain model EEO programs under MD -715, must
ensure the confidentiality of all harassment allegations , to the extent possible, and effective ly
communicate to employees that their EEO activity will not be disclosed with out their
authori zation , except in limited circumstances as provided by law.
Our review of the Agency’s Workplace Anti -Harassment Policy Statement reveals serious
shortcomings wit h regard to this obligation. In this regard, we note that the Agency’s policy
statement makes no assurances that the Agency will protect the confidentiality of individuals
bringing harassment complaints to the fullest extent possible. In fact, the Agency’s policy
statement contains no mention of any right to confidentiality.
This is a clear failure to communicat e, which undermines the effectiveness of the Agency’s anti -
harassment program, as managers may unknowingly violate the law and employees may be
discouraged from reporting harassment without assurances of confidentiality . MD-715 expressly
requires management and program accountability, which involves putting employees and
management officials on notice of their rights and responsibilities. As was dem onstrated in this
case where a Complainant’s supervisor disclosed her EEO activity to someone without a need to
know, it is critically important that an agency’s anti -harassment policy inform its employees of the
legal obligation to ensure the confidentiality of Complainant’s protected EEO activity , including
harassment allegations .
Summary of Policy Deficiencies and Corrective Action
The Commission finds that the Agency’s Workplace Anti -Harassment Policy Statement does not
meet the standards as required by MD 715, our Enforcement Guidance: Vicarious Employer
Liability for Unlawful Harassment by Supervisors and our Model EEO Programs Must Have An
Effective Anti -Harassment Program guidance. In particular, the Agency’s policy does not set out
with specificity the complaint procedures by which an employee may raise a claim of harassment ,
including time frames for the processing of the harassment allegations as well as naming officials
who can receive such claims. Second, the Agency’s policy does n ot provide notice of the requisite
confidentiality accorded to the filing of claims of harassment.
Pursuant to 29 C.F.R. § 1614.501(a)(2), to remedy a finding of discrimination, the Commission
may order an agency to provide corrective, curative or preventive actions to ensure that violations
of the law similar to those found will not recur . Here, as discussed above, the Agency’s anti -
harassment policy does not comply with the Commission’s MD -715 policy guidance because it
does not clearly establish the complaint procedure, including the appropriate channels for filing a
complaint , and ensure confidentiality to the extent possible. We would be remiss to take no action
to correct the Agency’s clear violation s of MD -715. As the Agency is not in complian ce with MD -
715 regarding its anti -harassment policy , under circumstances that are capable of being repeated,
we order the Agency to seek technical assistance from the Commission’s Office of Federal
Operations, Federal Sector Programs, and to correct the de ficiencies in the policy identified above.
This will ensure that the agency is taking the necessary preventive steps to avoid liability for
harassment in the future.
CONCLUSION
Based on a thorough review of the record, we MODIFY the Agency ’s final decision as set forth
herein and REMAND the matter to the Agency for further processing in accordance with the
ORDER below.
ORDER8
1. Within ninety (90) calendar days of the date this decision is issued, the Agency shall
undertake a supplemental investigation concerning Complainant ’s entitlement to
compensatory damages and determine the amount of compensatory damages due
Complainant in a final decision with appeal rights to the Commission.
The Agency shall pay this amount to Complainant within thirty (30) calendar days of the
date of the determination of the amount of compensatory damages . If there is a dispute
regarding the exact amount of compensatory damages, the Agency shall issue a check to
Compla inant for the undisputed amount. 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.”
2. Within thirty (30) calendar days of the date of this decision, the appropriate Agency EEO
component shall request technical assistance from the EEOC, Office of Federal Operations,
Federal Sector Programs (FSP), on revising its anti -harassment policy to conform to the
standards set forth in MD -715.
8 Because the record reflects that the responsible management official (Complainant’s supervisor)
is an active duty military officer, we cannot order the Agency to provide training and consider
disciplinary action, as we have no authority over active duty military personnel.
Within sixty (60) calendar days of the date this decision, the Agency shall revise its anti-
harassment policy to FSP’s satisfaction and the Agency shall promptly reissue a new anti -
harassment policy statement signed by the agency head .
To fulfill its legal obligation to effectively communicate EEO policies and procedures to
all employees, the Agency shall disseminate its revised anti -harassment policy s tatement
within thirty (30) calendar days of issuing the revised policy statement. Methods of
dissemination include training, webinars, brochures, emails, or other types of written
communication. Instructions to Federal Agencies for MD -715 Section I The Mo del EEO
Program , Part I. Element A (B).
3. Within thirty (30) calendar days of the date this decision is issued, the Agency shall post
a notice in accordance with the paragraph entitled “Posting Order.”
POSTING ORDER (G0617)
The Agency is ordered to post at its Strategic Systems Programs Headquarters in Washington,
D.C., 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 within 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).
ATTORNEY’S FEES (H101 9)
If Complainant has been represented by an attorney (as defined by 29 C.F.R. § 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. § 1614.501(e). The award of attorney's fe es 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 receipt of this
decision . 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 (K0719)
Under 29 C.F.R. § 1614.405(c) and §1614.502, compliance with the Commission’s corrective
action is mandator y. 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 doc ket 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 repor t 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 petitio n 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. §§ 1614.4 07 and 1614.408. A civil action for enforcement or a civil action on
the underlying complaint is subject to the deadline stated in 42 U.S.C. 2000e -16(c) (1994 & Supp.
IV 1999). If the Complainant files a civil action, the administrative processing of the
complaint, including any petition for enforcement, will be terminated . See 29 C.F.R.
§ 1614.409.
Failure by an agency to either file a compliance report or implement any of the orders set forth in
this decision, without good cause shown, may result in th e 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 c ase if the Complainant or
the Agency submits a written request containing arguments or evidence which tend to establish
that:
1. The appellate decision involved a clearly erroneous interpretation of material fact or
law; or
2. The appellate dec ision will have a substantial impact on the policies, practices, or
operations of the Agency.
Requests to reconsider, with supporting statement or brief, must be filed with the Office of Federal
Operations (OFO) within thirty (30) calendar days of receipt of this decision. A party shall have
twenty (20) calendar days of receipt of another party’s timely request for reconsideration in
which to submit a brief or statement in opposition. See 29 C.F.R. § 1614.405; Equal Employment
Opportunity Management Direct ive for 29 C.F.R. Part 1614 (EEO MD -110), at Chap. 9 § VII.B
(Aug. 5, 2015). All requests and arguments must be submitted to the Director, Office of Federal
Operations, Equal Employment Opportunity Commission. Complainant’s request may be
submitted via r egular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131
M Street, NE, Washington, DC 20507. In the absence of a legible postmark, the request to
reconsider shall be deemed timely filed if it is received by mail within five days of the expiration
of the applicable filing period. See 29 C.F.R. § 1614.604.
The agency’s request must be submitted in digital format via the EEOC’s Federal Sector EEO
Portal (FedSEP). See 29 C.F.R. § 1614.403(g). The request or opposition must also inc lude 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 w ill 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 p rocessing 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 alternat ive, 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 t he 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 o r 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 14, 2020
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189 | https://www.eeoc.gov/sites/default/files/migrated_files/decisions/0120123271.txt | 0120123271.txt | TXT | text/plain | 7,514 | June 21, 2012 | Appeal Number: 0120123271
Background:
At the time of events giving rise to this complaint, Complainant worked as a Management/Program Analyst at the Agency's Aircraft Certification facility in Westbury, New York. On June 13, 2012, Complainant filed a formal complaint alleging that the Agency subjected her to discrimination on the basis of reprisal for prior protected EEO activity under an EEO statute that was unspecified in the record when:
1. In Apri1 2012, upon initiating an informal EEO complaint against a manager, Complainant's EEO Counselor attempted to coerce and/or interfere with the processing of Complainant's EEO complaint when he referenced, made statements, and posed questions relating, to Complainant's prior EEO complaints.
The Agency dismissed the claim on the grounds that it was a spin-off complaint.
Legal Analysis:
the Commission as "spin-off" complaints. See EEOC Management Directive 110, Chapter 5, § III (F) (Nov. 9, 1999). Spin-off complaints are to be handled by the agency official responsible for complaint processing, and/or processed as part of the previously existing complaint. See id.; see also Fields v. Dep't of Health and Human Services, EEOC Appeal No. 05910159 (February 11, 1991). The record shows that the Agency did refer Complainant's complaints about the EEO Counselor to the Agency official responsible for complaint processing. A letter in the file, dated August 15, 2012, states that:
After receipt of your email which raised concerns, the FAA EEO Counselor Program Manager assigned another EEO Counselor, . . . to your complaint the same day your email was received. On April 23, 2012, you contacted the [Agency] Office of Civil Rights expressing concerns that [the previous EEO Counselor and the new EEO Counselor] may have discussed your current and past EEO complaints. On April 23, 2012, the [Agency] then re-assigned your complaint to . . . [a third] EEO Counselor with the [Agency] based on your request and expressed concerns to the [Agency] Civil Rights Office. Additionally, [the Agency] Civil Rights Director met with your former EEO Counselor, . . . on at least two occasions in the month of April 2012. During these meetings, [the Agency] contends that each of your raised concerns were addressed and discussed. The [Agency] recognized that there had been a breakdown in communication in the processing of your complaint. Subsequently, [your former EEO Counselor] was reminded of customer service expectations by the [Agency] Civil Rights Director. [Your former EEO Counselor] also attended Advanced EEO Counselor Refresher Training in June 2012.
We sincerely apologize and regret the incidents you experienced in the processing of your complaint. We appreciate you bringing this matter to our attention and trust that we have addressed your concerns.
We find that the Agency correctly dismissed the complaint pursuant to 29 C.F.R. § 1614.107(a)(8). We therefore need not address the Agency's argument on appeal that Complainant's appeal is untimely. | Complainant,
v.
Anthony Foxx,
Secretary,
Department of Transportation
(Federal Aviation Administration),
Agency.
Appeal No. 0120123271
Agency No. 201224542FAA01
DECISION
Complainant filed a timely appeal with this Commission from the Agency's decision (Dismissal) dated June 21, 2012, dismissing her complaint of unlawful employment discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. § 2000e et seq.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Management/Program Analyst at the Agency's Aircraft Certification facility in Westbury, New York. On June 13, 2012, Complainant filed a formal complaint alleging that the Agency subjected her to discrimination on the basis of reprisal for prior protected EEO activity under an EEO statute that was unspecified in the record when:
1. In Apri1 2012, upon initiating an informal EEO complaint against a manager, Complainant's EEO Counselor attempted to coerce and/or interfere with the processing of Complainant's EEO complaint when he referenced, made statements, and posed questions relating, to Complainant's prior EEO complaints.
The Agency dismissed the claim on the grounds that it was a spin-off complaint.
ANALYSIS AND FINDINGS
Under 29 C.F.R. § 1614.107(a)(8), an agency is to dismiss a complaint that "alleges dissatisfaction with the processing of a previously filed complaint." Such complaints are referred to by the Commission as "spin-off" complaints. See EEOC Management Directive 110, Chapter 5, § III (F) (Nov. 9, 1999). Spin-off complaints are to be handled by the agency official responsible for complaint processing, and/or processed as part of the previously existing complaint. See id.; see also Fields v. Dep't of Health and Human Services, EEOC Appeal No. 05910159 (February 11, 1991). The record shows that the Agency did refer Complainant's complaints about the EEO Counselor to the Agency official responsible for complaint processing. A letter in the file, dated August 15, 2012, states that:
After receipt of your email which raised concerns, the FAA EEO Counselor Program Manager assigned another EEO Counselor, . . . to your complaint the same day your email was received. On April 23, 2012, you contacted the [Agency] Office of Civil Rights expressing concerns that [the previous EEO Counselor and the new EEO Counselor] may have discussed your current and past EEO complaints. On April 23, 2012, the [Agency] then re-assigned your complaint to . . . [a third] EEO Counselor with the [Agency] based on your request and expressed concerns to the [Agency] Civil Rights Office. Additionally, [the Agency] Civil Rights Director met with your former EEO Counselor, . . . on at least two occasions in the month of April 2012. During these meetings, [the Agency] contends that each of your raised concerns were addressed and discussed. The [Agency] recognized that there had been a breakdown in communication in the processing of your complaint. Subsequently, [your former EEO Counselor] was reminded of customer service expectations by the [Agency] Civil Rights Director. [Your former EEO Counselor] also attended Advanced EEO Counselor Refresher Training in June 2012.
We sincerely apologize and regret the incidents you experienced in the processing of your complaint. We appreciate you bringing this matter to our attention and trust that we have addressed your concerns.
We find that the Agency correctly dismissed the complaint pursuant to 29 C.F.R. § 1614.107(a)(8). We therefore need not address the Agency's argument on appeal that Complainant's appeal is untimely.
CONCLUSION
The Dismissal is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
The Commission may, in its discretion, reconsider the decision in this case if the Complainant or the Agency submits a written request containing arguments or evidence which tend to establish that:
1. The appellate decision involved a clearly erroneous interpretation of material fact or law; or
2. The appellate decision will have a substantial impact on the policies, practices, or operations of the Agency.
Requests to reconsider, with supporting statement or brief, must be filed with the Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision or within twenty (20) calendar days of receipt of another party's timely request for reconsideration. See 29 C.F.R. § 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at 9-18 (November 9, 1999). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC 20013. In the absence of a legible postmark, the request to reconsider shall be deemed timely filed if it is received by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. The request or opposition must also include proof of service on the other party.
Failure to file within the time period will result in dismissal of your request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted with your request for reconsideration. The Commission will consider requests for reconsideration filed after the deadline only in very limited circumstances. See 29 C.F.R. § 1614.604(c).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S0610)
You have the right to file a civil action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision. If you file a civil action, you must name as the defendant in the complaint the person who is the official Agency head or department head, identifying that person by his or her full name and official title. Failure to do so may result in the dismissal of your case in court. "Agency" or "department" means the national organization, and not the local office, facility or department in which you work. If you file a request to reconsider and also file a civil action, filing a civil action will terminate the administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z0610)
If you decide to file a civil action, and if you do not have or cannot afford the services of an attorney, you may request from the Court that the Court appoint an attorney to represent you and that the Court also permit you to file the action without payment of fees, costs, or other security. See Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq.; the Rehabilitation Act of 1973, as amended, 29 U.S.C. §§ 791, 794(c). The grant or denial of the request is within the sole discretion of the Court. Filing a request for an attorney with the Court does not extend your time in which to file a civil action. Both the request and the civil action must be filed within the time limits as stated in the paragraph above ("Right to File a Civil Action").
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
February 27, 2015
__________________
Date
| [
"Fields v. Dep't of Health and Human Services, EEOC Appeal No. 05910159 (February 11, 1991)",
"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"
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