Latoyia B,1 Complainant,v.Sonny Perdue, Secretary, Department of Agriculture, Agency.

Equal Employment Opportunity Commission

Sep 2, 2020

2020002040 (E.E.O.C. Sep. 2, 2020)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Latoyia B,1 Complainant, v. Sonny Perdue, Secretary, Department of Agriculture, Agency. Appeal No. 2020002040 Agency No. FAS201900863 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's final decision dated December 12, 2019, dismissing a formal complaint of unlawful employment discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. § 2000e et seq., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. BACKGROUND During the period at issue, Complainant worked as a Traffic Management Specialist, 0301, GS 9 at the Agency’s Foreign Agricultural Service, Information Technology Service Branch in Washington, DC. On July 3, 2019, Complainant initiated EEO Counselor contact. Informal efforts at resolution were not successful. On October 16, 2019, Complainant filed a formal EEO complaint. As summarized by the Agency, Complainant alleged that she was discriminated against and subjected to discriminatory harassment based on race and age when: 1. on or around February 2019, Complainant learned management modified her 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. 2020002040 2 Position Description (PD) as a Transportation Management Specialist, without her knowledge; 2. on or around December 5, 2018, management abolished the GS-0301-11, Traffic Management Specialist position at Complainant’s agency, which foreclosed her future promotion opportunities; and 3. on June 7, 2019, Complainant was subjected to harassment when the Transportation Logistics Chief said to her, “At the end of the day, you will not be promoted anyway …” In its December 12, 2019 final decision, the Agency dismissed Complainant’s formal complaint on two procedural grounds. First, the Agency dismissed the formal Complainant, pursuant 29 C.F.R. § 1614.107(a)(2), finding that the formal complaint was untimely filed. The Agency stated that Complainant received the Notice of Right to File a Formal Complaint (Notice) on September 30, 2019. However, the Agency found that Complainant did not file the formal complaint until October 16, 2019, which it found to be one day beyond the 15-day filing period. Second, the Agency dismissed claims 1 and 2, pursuant to 29 C.F.R. § 1614.107(a)(2), for untimely EEO Counselor contact. The Agency found that Complainant’s initial EEO Counselor contact was July 3, 2019, which was well beyond the 45-day limitation period. The instant appeal followed. ANALYSIS AND FINDINGS Filing of 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 formal complaint within fifteen (15) days of receiving notice of the right to do so. A copy of the Notice reflects that Complainant was informed that she had 15 days to timely file her formal complaint and Complainant was instructed to submit her complaint to the Agency’s Complaints Division. The Agency states, and Complainant does not dispute, that Complainant received the Notice on September 30, 2019, and had 15 days, or until October 15, 2019 to timely file. 2020002040 3 On appeal, Complainant argues that she timely filed her formal complaint on October 15, 2019. Specifically, Complainant states that she emailed her formal complaint to the EEO Civil Rights Office on October 15, 2019, and the EEO Civil Rights Office forwarded her complaint to the Complaints Division on October 16, 2019. Our review of the record does not include a copy of any email from Complainant to the EEO Counselor on October 15, 2019. However, the record reflects that on October 16, 2019, the EEO Counselor forwarded, via email, Complainant’s formal complaint to the Complaints Division. Based on the specific circumstances of this case, we determine that it is appropriate to reverse the Agency’s dismissal and remand the complaint for further processing. Where, as here, there is an issue of timeliness, an agency has the burden of proof to support its dismissal decision. See Guy v. Department of Energy, EEOC Request No. 05930703 (Jan. 4, 1994) (quoting Williams v. Department of Defense, EEOC Request No. 05920506 (Aug. 25, 1992)). Here, Complainant has credibly asserted that she emailed her formal complaint in a timely manner on October 15, 2019 to the EEO Counselor. Although Complainant should have submitted her formal complaint to the Complaints Division, the EEO Counselor corrected this error and forwarded Complainant’s complaint to the appropriate office. Thus, we find that the Agency has provided insufficient evidence to dispute that Complainant timely filed her formal complaint on October 15, 2019. Therefore, we reverse the Agency’s dismissal for untimely filing of the formal complaint. 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 personnel action, within forty-five (45) days of the effective date of the action. Claims 1 and 2 concern concrete personnel actions allegedly taken by the Agency in December 2018 (claim 2) and February 2019 (claim 1). However, it is undisputed that Complainant did not initiate contact with an EEO counselor on these matters until July 3, 2019, well beyond the 45- day limitation period. 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. 29 C.F.R. § 1614.604(c). Here, on appeal, Complainant argues, in pertinent part, that she was not represented correctly through the EEO process and that “information was withheld and not plainly presented.” These very general assertions, without more, do not provide sufficient justification to exercise our discretion to excuse Complainant’s delay in seeking EEO counseling. Therefore, we affirm the Agency’s dismissal of claims 1 and 2 as independent claims of discrimination. 2020002040 4 However, claim 3 occurred on June 7, 2019, when Complainant alleges that she was subjected to discriminatory harassment when the Logistics Chief informed her that she would never be promoted. The EEO Counselor’s report indicates that Complainant initiated EEO counselor contact on July 3, 2019, which was well within the 45-day limitation period. As a fair reading of Complainant’s harassment claim more properly characterizes it as ongoing harassing efforts to foreclose Complainant’s promotion opportunities, we conclude that the events that make up claims 1 and 2, which relate to Complainant’s promotional opportunities, can be considered as background evidence in support of the accepted harassment claim (claim 3). See National Railroad Passenger Corp. v. Morgan, 536 U.S. 101, 122 S. Ct. 2061 (2002 (untimely raised discrete acts may be used as background evidence in support of a timely harassment claim). CONCLUSION The Agency’s final decision dismissing claim 3, now characterized as ongoing harassment related to promotional opportunities, is REVERSED and the complaint is REMANDED to the Agency for further processing in accordance with the following ORDER. ORDER (E0618) The Agency is ordered to process the remanded claim (ongoing harassment related to promotional opportunities) 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 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) 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). 2020002040 5 The Agency’s final report must contain supporting documentation when previously not uploaded, and the Agency must send a copy of all submissions to the Complainant and his/her representative. If the Agency does not comply with the Commission’s order, the Complainant may petition the Commission for enforcement of the order. 29 C.F.R. § 1614.503(a). The Complainant also has the right to file a civil action to enforce compliance with the Commission’s order prior to or following an administrative petition for enforcement. See 29 C.F.R. §§ 1614.407, 1614.408, and 29 C.F.R. § 1614.503(g). 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 (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. 2020002040 6 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 2, 2020 Date