[Redacted], Alfredo S., 1 Complainant,v.Christine Wormuth, Secretary, Department of the Army, Agency.

Equal Employment Opportunity Commission

Sep 21, 2021

Appeal No. 2021004549 (E.E.O.C. Sep. 21, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Alfredo S.,1 Complainant, v. Christine Wormuth, Secretary, Department of the Army, Agency. Appeal No. 2021004549 Hearing No. 531-2020-00237X Agency No. ARARL18MAY01609 DECISION Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's final decision dated March 29, 2021, 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 worked as a Mechanical Engineer, DB-0830-03, at the Agency’s U.S. Army Research Laboratory in Aberdeen Proving Ground, Maryland. On July 9, 2018, Complainant filed a formal EEO complaint claiming that the Agency discriminated against him based on race and color (Black) when his FY 2017 performance appraisal did not reflect the ratings he believed his work deserved. According to Complainant, he received the appraisal on or about December 18, 2017. On January 30, 2018, Complainant filed an administrative grievance with upper management seeking to change the appraisal. On April 6, 2018, Complainant received a response, dated March 27, 2018, to the grievance denying his request to change the appraisal. On May 8, 2018, Complainant sought EEO counseling on the matter. 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. 2021004549 2 After the Agency conducted as investigation into his EEO complaint,2 Complainant requested a hearing before an EEOC Administrative Judge (AJ). On January 29, 2021, the AJ dismissed the formal complaint for untimely EEO counselor contact. The AJ determined that Complainant initiated EEO counselor contact on March 20, 2018, which the AJ found well beyond the 45-day limitation period required by 29 C.F.R. § 1614.105(a)(1), from when he received the disputed appraisal. On February 17, 2021, before the Agency issued its final order on the AJ’s dismissal, Complainant filed an appeal. On March 29, 2021, the Agency issued a final decision implementing the AJ’s dismissal. ANALYSIS AND FINDINGS As an initial matter, we note that Complainant filed his appeal prematurely prior to the Agency’s issuance of its final order. However, we now find that the appeal has been perfected as the Agency subsequently issued its final order on March 29, 2021, implementing the AJ’s dismissal of the complaint. See EEOC Appeal No. 2021002151 (August 16, 2021). 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. 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. Here, the AJ properly dismissed the formal complaint on grounds of untimely EEO counselor contact. The record reflects that Complainant received the FY 2017 performance appraisal on or about December 18, 2017. However, it is undisputed that Complainant waited until May 8, 2018, to initiate EEO counselor’s contact, well beyond the 45-day limitation period. The EEO Counselor’s report indicates that Complainant said he delayed contacting an EEO counselor because he had filed the January 30, 2018 grievance regarding the performance appraisal and was waiting for a response. 2 The Agency initially dismissed the formal complaint for failure to state a claim. However, the Commission reversed this dismissal and remanded the complaint for further processing. See EEOC Appeal No. 2019000418 (Oct. 8, 2019). 2021004549 3 On appeal, Complainant further acknowledges that he, “could not reasonably make a claim of discrimination on my FY 17 Appraisal based on suspicion without the proper evidence. I did not have the proper evidence until I received the memo [denying his grievance] dated March 27, 2018.” We conclude that Complainant has not presented persuasive arguments or evidence warranting an extension of the time limit for initiating EEO counselor contact. Complainant’s argument that he did not reasonably suspect discrimination until after he received the decision on his grievance is not persuasive. The record is clear that Complainant suspected discrimination at the time he received his appraisal in December 2017. The language in his January 2018 grievance reveals this suspicion. Moreover, in a January 6, 2021 deposition during the hearing process, Complainant was specifically asked when he first suspected discrimination after he received his performance appraisal and he responded, “Immediately, immediately.” Therefore, the record is clear that Complainant reasonably suspected discrimination, even if he had not gathered all the evidence to support his claim, at the time he received his appraisal in December 2017. This suspicion was sufficient to trigger the 45-day timeframe for seeking EEO counseling. Moreover, with regard to Complainant’s claim that he was waiting for a decision on his grievance before seeking EEO counseling, 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. U.S. Postal Service, EEOC Appeal No. 01954021 (Oct. 5, 1995); Williams v. U.S. Postal Service, EEOC Request No. 05910291 (Apr. 25, 1991); Ellis v. U.S. Postal Service, EEOC Appeal No. 01992093 (Nov. 29, 2000). CONCLUSION The Agency's final order implementing the AJ's dismissal for untimely EEO Counselor contact is AFFIRMED. 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. 2021004549 4 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). 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. 2021004549 5 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 21, 2021 Date