[Redacted], Alexander A., 1 Complainant,v.Antony Blinken, Secretary, Department of State, Agency.

Equal Employment Opportunity Commission

Aug 23, 2021

Appeal No. 2021003147 (E.E.O.C. Aug. 23, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Alexander A.,1 Complainant, v. Antony Blinken, Secretary, Department of State, Agency. Appeal No. 2021003147 Agency No. DOS-0061-21 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's final decision dated April 15, 2021, dismissing a formal 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 During the period at issue, Complainant worked as a Special Agent at the Agency’s Consular Programs/High Threat Programs in Washington, D.C. On December 22, 2020, Complainant initiated EEO Counselor contact. Informal efforts at resolution were not successful. On February 22, 2021, Complainant filed a formal EEO complaint claiming that the Agency discriminated against him based on disability when: 1. Complainant’s security clearance was revoked on October 7, 2015; and 2. Complainant’s employment was terminated on November 2, 2020.2 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 formal complaint indicates that the Complainant’s employment was terminated on November 2, 2020, not November 2, 2021, as stated in the Agency’s final decision. 2021003147 2 The Agency dismissed the formal complaint on two grounds. First, the Agency dismissed claim 1, pursuant to 29 C.F.R. § 1614.107(a)(2), for untimely EEO Counselor contact. The Agency determined that Complainant’s initial EEO Counselor contact was on December 22, 2020, which it found to be beyond the 45-day limitation period. Second, the Agency dismissed claim 2 pursuant to 29 C.F.R. § 1614.107(a)(1) failure to state a claim finding that Complainant was lodging a collateral attack on the proceedings of an internal agency investigation. The instant appeal followed. On appeal, Complainant only disputes the Agency’s dismissal of claim 2. Complainant argues that claim 2 is not a collateral attack. Rather, Complainant argues that the Agency terminated his employment based on a perceived or actual mental disability. ANALYSIS AND FINDINGS Claim 1 - Dismissal for Untimely EEO Counselor Contact The Agency properly dismissed Complainant’s complaint for untimely EEO Counselor contact. EEOC Regulation 29 C.F.R. § 1614.105(a)(1) requires that complaints of discrimination should be brought to the attention of the Equal 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, Complainant asserts that his security clearance was revoked on October 7, 2015,3 However, Complainant did not initiate contact with an EEO counselor until December 22, 2020, almost five years beyond the 45-day limitation period. On appeal, Complainant has presented no arguments or evidence warranting an extension of the time limit for initiating EEO Counselor contact. We note, moreover, that the Commission has consistently held that a complainant must act with due diligence in the pursuit of his claim or the doctrine of laches may apply. See Becker v. United States Postal Service, EEOC Appeal No. 01A45028 (Nov. 18, 2004) (finding that the doctrine of laches applied when complainant waited over two years from the date of the alleged discriminatory events before contacting an EEO Counselor); O'Dell v. Department of 3 We note that the Agency asserts in the final decision that Complainant was first notified that his security clearance was suspended on July 11, 2014. The Agency further contends that the revocation became final on March 13, 2019, after Complainant exhausted his security clearance appeals. However, Complainant still did not contact an EEO Counselor within 45- days of March 13, 2019. Complainant does not submit any statements on appeal explaining why he did not initiate EEO Counselor contact within 45-days after his security clearance became final on March 13, 2019 to warrant extension of the 45-day limitation period. 2021003147 3 Health and Human Service, EEOC Request No. 05901130 (Dec. 27, 1990). The doctrine of laches is an equitable remedy under which an individual's failure to pursue diligently his course of action could bar his claim. Because Complainant did not act with reasonable diligence in contacting an EEO Counselor, the doctrine of laches requires dismissal. Claim 2 - Dismissal for Failure to State a Claim (collateral attack) An employee cannot use the EEO complaint process to lodge a collateral attack on another proceeding. See Wills v. Dep't of Def, EEOC Request No. 05970596 (July 30, 1998); Kleinman v. U.S. Postal Serv., EEOC Request No. 05940585 (Sept. 22, 1994); Lingad v. U.S. Postal Serv., EEOC Request No. 05930106 (June 25, 1993). A claim that can be characterized as a collateral attack, by definition, involves a challenge to another forum's proceeding, such as the grievance process, the workers' compensation process, an internal agency investigation, or state or federal litigation. See Fisher v. Dep't of Defense, EEOC Request No. 05931059 (July 15, 1994). The Agency inappropriately determined that Complainant was lodging a collateral attack on an internal agency investigation regarding the decision to revoke Complainant’s security clearance. Our review of the formal complaint and EEO Counselor’s report indicates that Complainant alleged that the Agency terminated his employment based on an alleged perception that he had a mental disability. We acknowledge that Complainant explained that the alleged perception of his disability resulted in the revocation of his security clearance, which subsequently resulted in his termination. However, Complainant is not directly challenging the specific findings of the Agency’s three-year internal investigation regarding the revocation of his security clearance. Accordingly, our review indicates that Complainant’s formal complaint states 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. Dep’t of the Air Force, EEOC Request No. 05931049 (Apr. 21, 1994). Here, Complainant asserts that his employment was terminated because of a perceived mental disability. Thus, Complainant has adequately alleged he suffered a present harm or loss with respect to a term, condition, or privilege of employment for which there is a remedy. 2021003147 4 CONCLUSION We AFFIRM the Agency’s final decision dismissing claim 1 for untimely EEO Counselor contact. We REVERSE the Agency’s final decision dismissing claim 2 for failure to state a claim. We REMAND claim 2 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 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). 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 2021003147 5 “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 (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, 2021003147 6 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). 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 (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). 2021003147 7 FOR THE COMMISSION: _’s signature Carlton M. Hadden, Director Office of Federal Operations August 23, 2021 Date