[Redacted], Adalberto D., 1 Complainant,v.James E. McPherson, Acting Secretary, Department of the Navy, Agency.

Equal Employment Opportunity Commission

Jan 25, 2021

Appeal No. 2020005352 (E.E.O.C. Jan. 25, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Adalberto D.,1 Complainant, v. James E. McPherson, Acting Secretary, Department of the Navy, Agency. Appeal No. 2020005352 Agency No. DON-20-02543-02141 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's final decision dated August 31, 2020, dismissing a formal complaint of unlawful employment discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. § 2000e et seq. BACKGROUND During the period at issue, Complainant worked as an EEO Specialist at the Agency’s Military Sealift Command (MSC) in Norfolk, Virginia. On August 6, 2020, Complainant filed a formal complaint alleging that the Agency subjected him to unlawful retaliation for engaging in prior protected EEO activity when he was removed from federal service effective March 31, 2019. The Agency dismissed Complainant’s complaint for untimely EEO Counselor contact. The Agency reasoned that Complainant initiated EEO contact on May 22, 2020, outside of the applicable time period. The Agency denied Complainant’s request for equitable tolling, noting that Complainant is a seasoned EEO Specialist and is well aware of the applicable time limit. 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. 2020005352 2 The instant appeal followed. Complainant asserts that he timely made initial EEO contact on September 28, 2018, for Agency Case No. DON-18-0033-01398 after he received the proposed removal on September 4, 2018. Complainant further asserts that he appealed a decision from the Merits Systems Protection Board (MSPB) on this matter (removal) to the Court of Appeals Federal Circuit and that his EEO contact was within 45 days of receiving Court’s decision. Finally, Complainant asserts that the Agency failed to complete counseling within 30 days and requests sanctions. In response, the Agency requests that we affirm its final decision dismissing Complainant’s complaint for untimely EEO Counselor contact. The Agency asserts that the federal court decision cited by Complainant did not relate to his March 31, 2019 removal. Specifically, the Agency states that Complainant “is seeking to assert the MSPB appeals process he availed himself of in regard to an unrelated 2018 action, i.e. indefinite suspension…, as the stated basis for his untimely 2020 formal EEO complaint…” Finally, the Agency requests that we deny Complainant’s request for sanctions reasoning that Complainant has not shown that he experienced a negative impact from the Agency’s brief delay in the counseling process. 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. EEOC regulations provide that the agency or the Commission shall extend the time limits when the individual shows that he was not notified of the time limits and was not otherwise aware of them, that he did not know and reasonably should not have known that the discriminatory matter or personnel action occurred, that despite due diligence he was prevented by circumstances beyond his control from contacting the Counselor within the time limits, or for other reasons considered sufficient by the agency or the Commission. Here, the Agency properly dismissed the formal complaint for untimely EEO counselor contact. Complainant initiated EEO contact on May 22, 2020, regarding his removal effective March 31, 2019, outside of the applicable time period.2 We are not persuaded by Complainant’s assertion that he timely initiated EEO contact regarding his removal on September 28, 2018 in Agency Case No. DON-18-00033-01398. The record contains the Notice of Right to File a Formal Complaint for Agency Case No. DON-18-00033-01398. Therein, the Notice reflects that Complainant initiated EEO contact on September 28, 2018 regarding an indefinite suspension, and not his removal. 2 The record contains a copy of the Agency’s March 27, 2019 final removal decision. Therein, the Agency informed Complainant that if he wanted to pursue a discrimination complaint on his removal, he should contact an EEO Counselor within 45 days of the effective date of the action. 2020005352 3 We also are not persuaded by Complainant’s assertion that his May 22, 2020 EEO contact was timely due to a decision issued on April 8, 2020, by the United States Court of Appeals for the Federal Circuit, in which the Court affirmed an MSPB decision (MSPB Docket No. DC-0752-18- 0850-I-1 (March 11, 2019). See 809 Fed. Appx. 872 (April 8, 2020). MSPB Docket No. DC- 0752-18-0850-I-1 affirmed Complainant’s indefinite suspension and did not address his removal. Thus, the April 8, 2020 Court decision did not involve Complainant’s removal.3 The record also contains a copy of another MSPB decision, MSPB Docket No. DC-1221-19-0772- W-1 (Dec. 19, 2019), pertaining to an individual right of action (IRA) appeal filed by Complainant with the MSPB regarding his removal. According to the decision, Complainant filed this appeal with the MSPB after July 24, 2019, the date the Office of Special Counsel issued Complainant a notice of right to file an IRA appeal. The MSPB dismissed this appeal for lack of jurisdiction. The Commission has held that when a complainant files a mixed-case appeal with the MSPB and it is dismissed on jurisdictional grounds, the agency is required to promptly notify the complainant, in writing, of his right to contact an EEO Counselor and to file a complaint subject to 29 C.F.R. §1614.107. See 29 C.F.R. §1614.302(b). When there is a mixed-case appeal, the date on which complainant filed his appeal with the MSPB shall be deemed to be the date of initial contact with the EEO Counselor. See Bell v. Dep't of Defense, EEOC Request No. 05940741 (Jan. 6, 1995). We note that even if we were to use Complainant’s filing date of his appeal to the MSPB regarding his removal (a date subsequent to July 24, 2019) as his EEO Counselor contact date, his EEO contact would still be untimely. Based on the foregoing, we find that Complainant failed to provide sufficient justification for extending the applicable time limit. We AFFIRM the Agency’s final decision dismissing the formal complaint for untimely EEO Counselor contact.4 3 We further note that this MSPB decision and Court of Appeals Federal Circuit decision affirmed the Agency’s action and did not dismiss the matter (indefinite suspension) for lack of jurisdiction. 4 We deny Complainant’s motion for sanctions. We do not find that Complainant was harmed by the Agency’s brief delay in concluding EEO Counseling. 2020005352 4 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 Street, NE, Washington, DC 20507. In the absence of a legible postmark, a complainant’s request to reconsider shall be deemed timely filed if OFO receives it by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. An agency’s request for reconsideration must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Either party’s request and/or statement or brief in opposition must also include proof of service on the other party, unless Complainant files his or her request via the EEOC Public Portal, in which case no proof of service is required. Failure to file within the 30-day time period will result in dismissal of the party’s request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted together with the request for reconsideration. The Commission will consider requests for reconsideration filed after the deadline only in very limited circumstances. See 29 C.F.R. § 1614.604(c). 2020005352 5 COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION (S0610) You have the right to file a civil action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision. If you file a civil action, you must name as the defendant in the complaint the person who is the official Agency head or department head, identifying that person by his or her full name and official title. Failure to do so may result in the dismissal of your case in court. “Agency” or “department” means the national organization, and not the local office, facility or department in which you work. If you file a request to reconsider and also file a civil action, filing a civil action will terminate the administrative processing of your complaint. RIGHT TO REQUEST COUNSEL (Z0815) If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant’s Right to File a Civil Action for the specific time limits). FOR THE COMMISSION: ___________________________ Carlton M. Hadden’s signature Carlton M. Hadden, Director Office of Federal Operations January 25, 2021 Date