0120162654
03-08-2018
Chad L,1 Complainant, v. Kirstjen M. Nielsen, Secretary, Department of Homeland Security (Immigration and Customs Enforcement), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Chad L,1
Complainant,
v.
Kirstjen M. Nielsen,
Secretary,
Department of Homeland Security
(Immigration and Customs Enforcement),
Agency.
Appeal No. 0120162654
Agency No. HSICE026092015
DECISION
Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's decision, dated July 22, 2016, dismissing his complaint of unlawful employment discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Deportation Officer at an Agency facility in Chattanooga, Tennessee. On January 14, 2015, Complainant initiated contact with an Equal Employment Opportunity (EEO) Counselor alleging that the Agency subjected him to hostile work environment harassment based on religion (Christian) when:
1. between 2012 and June 20, 2014, a coworker (C1) placed anti-Christian signs outside of his cubicle wall, which faced Complainant's cubicle,
2. on multiple occasions since 2012, C1 made anti-Christian comments, such as Complainant worships a "Spaghetti Monster" and "Anyone can make a fake God to worship," and
3. on September 10, 2014, Complainant turned over an offensive picture posted by C1 to the Agency's Office of Internal Affairs (OIA), and nothing was done to address the matter.
Complainant stated that he works in a small office with four coworkers, and that he and two other coworkers applied for a promotion, for which he was selected. Complainant stated, since that time (August 12, 2012), the office atmosphere has been hostile and C1, who used to be a friend, has become antagonistic toward him. Complainant stated that he reported C1's behavior to management and requested an OIA investigation, but he is uncertain of the status of those inquiries. Complainant stated that he was unaware of the timeframe for EEO contact until his supervisor suggested he read the Agency EEO policy. Complainant stated, in May 2014, he requested a hardship transfer to the Agency's Nashville, Tennessee office. On February 23, 2015, Complainant filed a formal EEO complaint reiterating the above claim of harassment.
The Agency investigated Complainant's claim. Following the investigation, the Agency informed Complainant of the right to request a hearing before an EEOC Administrative Judge (AJ) or an immediate final agency decision. Complainant requested the former. During the hearing stage, the Agency motioned for dismissal based on untimely EEO contact.
On June 13, 2016, the assigned AJ issued a decision dismissing Complainant's claim, pursuant to 29 C.F.R. � 1614.107(a)(2), for untimely EEO contact. The AJ stated that the Agency showed that it provided training on EEO deadlines to Complainant on multiple occasions, including November 25, 2013. The AJ found that Complainant had "constructive notice" of the 45-day time limit to initiate EEO contact. Further, the AJ found that Complainant failed to show that he was so medically-incapacitated2 that he could not initiate EEO contact in a timely manner. The AJ found that Complainant failed to show grounds for extending the 45-day time frame or tolling the time limit.
On July 22, 2016, the Agency issued a final decision adopting the AJ's dismissal. The instant appeal from Complainant followed. On appeal, Complainant stated that he was medically- incapacitated with anxiety and stress so he was unable to initiate EEO contact in a timely manner. Complainant stated that he provided evidence to support his contentions. (Complainant provided three letters from behavioral health professionals - dated April 2, 2014, April 4, 2014, and undated - referring to his treatment for emotional distress due to the hostile work environment and the resulting need for a hardship transfer.)
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R. � 1614.105(a)(1) requires that complaints of discrimination be brought to the attention of an EEO Counselor within forty-five (45) days of the date of the matter alleged to be discriminatory or, in the case of personnel action, within forty-five (45) days of the effective date of the action.
Here, the Agency properly dismissed Complainant's complaint on the ground of untimely EEO Counselor contact. The most recent alleged discriminatory event occurred on September 10, 2014 (the day Complainant presented evidence to OIA regarding coworker harassment and they did not address it). However, Complainant did not initiate contact with an EEO Counselor until January 14, 2015, which is 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. The record shows that Complainant attempted to process his concerns through other internal Agency forums prior to initiating EEO contact.
On appeal, Complainant failed to 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). First, 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). Second, the Commission has also held, in cases involving physical or mental health difficulties, an extension is warranted only where an individual is so incapacitated by his condition that he is unable to meet the regulatory time limits. See Davis v. U.S. Postal Service, EEOC Request No. 05980475 (August 6, 1998); Crear v. U.S. Postal Service, EEOC Request No. 05920700 (October 29, 1992). Here, Complainant did not provide medical documentation showing that he was medically incapacitated such that he could not contact an EEO counselor until January 14, 2015.
Accordingly, we find that Complainant has failed to provide sufficient justification for extending or tolling the limitation period.
CONCLUSION
After careful review of the record, we AFFIRM the Agency's final decision dismissing Complainant's complaint.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0617)
The Commission may, in its discretion, reconsider the decision in this case if the Complainant or the Agency submits a written request containing arguments or evidence which tend to establish that:
1. The appellate decision involved a clearly erroneous interpretation of material fact or law; or
2. The appellate decision will have a substantial impact on the policies, practices, or operations of the Agency.
Requests to reconsider, with supporting statement or brief, must be filed with the Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. A party shall have twenty (20) calendar days of receipt of another party's timely request for reconsideration in which to submit a brief or statement in opposition. See 29 C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9 � VII.B (Aug. 5, 2015). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission. Complainant's request may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, the request to reconsider shall be deemed timely filed if it is received by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. � 1614.604. The agency's request must be submitted in digital format via the EEOC's Federal Sector EEO Portal (FedSEP). See 29 C.F.R. � 1614.403(g). The request or opposition must also include proof of service on the other party.
Failure to file within the time period will result in dismissal of your request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted with your request for reconsideration. The Commission will consider requests for reconsideration filed after the deadline only in very limited circumstances. See 29 C.F.R. � 1614.604(c).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S0610)
You have the right to file a civil action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision. If you file a civil action, you must name as the defendant in the complaint the person who is the official Agency head or department head, identifying that person by his or her full name and official title. Failure to do so may result in the dismissal of your case in court. "Agency" or "department" means the national organization, and not the local office, facility or department in which you work. If you file a request to reconsider and also file a civil action, filing a civil action will terminate the administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z0815)
If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter
the time limits for filing a civil action (please read the paragraph titled Complainant's Right to File a Civil Action for the specific time limits).
FOR THE COMMISSION:
______________________________ Carlton M. Hadden's signature
Carlton M. Hadden, Director
Office of Federal Operations
March 8, 2018
__________________
Date
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 record reveals that Complainant continued to work as a Deportation Officer without significant absence during the relevant period.
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