[Redacted], Alma F., 1 Complainant,v.William J. Burns, Director, Central Intelligence Agency, Agency.

Equal Employment Opportunity Commission

Apr 4, 2022

Appeal No. 2021000965 (E.E.O.C. Apr. 4, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Alma F.,1 Complainant, v. William J. Burns, Director, Central Intelligence Agency, Agency. Appeal No. 2021000965 Agency No. 20-29 DECISION Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency’s final decision dated October 30, 2020, dismissing her 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. Upon review, the Commission finds that Complainant’s complaint was properly dismissed pursuant to 29 C.F.R. § 1614.107(a)(2), for untimely EEO counselor contact. BACKGROUND From July 12, 2016 to December 20, 2019, Complainant was a contractor who performed work for the Agency. On February 25, 2020, she contacted an Agency EEO counselor and subsequently filed a complaint alleging continuous and on-going harassment and a hostile work environment (quid-pro-quo) from October 2018 through February 2020 based on her sex (female) and in reprisal for her opposition to the harassment. The harassment included, but was not limited to, the following: a) Starting in around October 2018, A1, an Agency manager, continually contacted Complainant, gave her unsolicited gifts, performed unsolicited favors, tried to help her career, asked people to look out for her and created a cycle of pressure and manipulation; 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. 2021000965 2 b) From January 2019 through December 2019, A1 pressured Complainant to continue their relationship over her objections and efforts to extract herself from him; c) From May 2019 through October 2019, A1 pressured Complainant by threatening to expose their relationship to Complainant’s partner, threatening her partner, having people check in on her job application with the Agency, and using her job application with the Agency and by using her career as leverage; d) From October 2019 through February 2020, Complainant continued to try to break ties with A1 and informed her partner of the situation, A1 continued to contact Complainant by phone, email, mail and social media and through his brother (also an Agency employee); e) On 20 December 2019, to remove A1 from her life, Complainant resigned from her government contract position with the Agency and removed herself from the Agency’s staff hiring process (constructive non- selection).2 The Agency, in its final decision, dismissed Complainant’s complaint on the grounds that she contacted an EEO counselor in an untimely manner. According to the Agency, Complainant, in order to have been timely should have contacted a counselor prior to February 3, 2020, the 45th day after her December 20th resignation. It included an affidavit from D1, the Chief of the Agency’s Anti-Harassment Program, indicating that he oversaw training for Agency employees and contractors on the Agency’s harassment policy. Specifically, D1 stated that he: reviewed Agency attendance records for the HFW [Harassment Free Workplace] training classes and have confirmed that Complainant completed HFW training on 23 October 2018. Attached hereto as Exhibit 1 is an Agency record confirming Complainant’s completion of the Agency required HFW training. All participants in the HFW training are informed, as a matter of routine, that to preserve their rights in the federal sector EEO complaint process, they must initiate contact with an EEO counselor within 45 calendar days of the date of the matter alleged to be discriminatory or, in the case of personnel action, within 45 calendar days of the effective date of the action. The Agency also addressed an additional issue, hereinafter claim f, that was raised in the EEO counselor’s report. According to Complainant, in early January 2020 and a few weeks after she resigned, A1 reached out to her via Instagram to let her know that a mutual friend of theirs had been badly injured. The Agency found that this claim did not state a claim of harassment because Complainant did not establish that she was aggrieved, or that the conduct here was reasonably likely to deter her or others from engaging in protected EEO activity. 2 The Agency also viewed this claim as an allegation of constructive discharge. 2021000965 3 On appeal, Complainant argues that the Agency’s final decision should be reversed because she was not aware that, as a contractor, she could file an EEO complaint regarding A1’s conduct, nor was she aware of the 45-day time limitation period for contacting an EEO counselor. According to Complainant, she spoke to an attorney on February 10, 2020, and for the first time, discovered that she could file a complaint, and about the time limitation period. Complainant stated that 15 days after speaking with her attorney, i.e., February 25, 2020, she contacted the EEO counselor, which was 67 days after her resignation. Complainant further argued that documents showing her attending the October 23, 2020, training and D1’s affidavit were merely generalized assertions that she knew or had constructive notice of the timeframe. Complainant noted the lack of training materials that would clearly establish what was covered during the training. Complainant did not contest the dismissal of claim f. In its February 3, 2021, response brief, the Agency provided the training materials for the October 23, 2020 training, and argued that its final decision should be affirmed. On February 12, 2021, one month after she filed her appeal brief, Complainant filed a reply to the Agency’s response brief, Complainant argued that the materials provided by the Agency should not be considered because they were not submitted to her at the time the final decision was issue, or while she prepared her brief. ANALYSIS AND FINDINGS At the outset, we note that the Commission has the discretion to review only those issues specifically raised in an appeal. Because Complainant does not specifically contest the dismissal of claim f on the grounds that it failed to state a claim, this issue will not be further addressed in this decision. See EEOC Management Directive for 29 C.F.R. Part 1614, (MD-110), Chap. 9, § IV.A. (Aug. 5, 2015) (“Although the Commission has the right to review all of the issues in a complaint on appeal, it also has the discretion to focus only on those issues specifically raised on appeal.”). Moreover, we must remind the parties that there is no provision in our regulations for the parties to respond to each other’s briefs; therefore, we will not consider Complainant’s February 12, 2021, reply brief. 29 C.F.R. § 1614.403(f). Also, generally, no new evidence will be considered on appeal unless there is an affirmative showing that the evidence was not reasonably available prior to or during the investigation. Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), Ch. 9, § VI.A.3 (Aug. 5, 2015). Here, the Agency did not make such a showing regarding the training materials it sought to submit with its response to Complainant’s appeal. Accordingly, we decline to consider this evidence. EEOC Regulation 29 C.F.R. § 1614.105(a)(1) provides that an aggrieved person must initiate contact with an EEO 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 Regulation 29 C.F.R. § 1614.107(a)(2) provides for the dismissal of 2021000965 4 complaints where the complainant did not initiate contact with an EEO Counselor within 45 days of the date of the matter alleged to be discriminatory or, in the case of a personnel action, within 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 (February 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, it is undisputed that Complainant initiated EEO counselor contact on February 25, 2020. The alleged discriminatory events at issue ended on December 20, 2020, with Complainant’s resignation. Thus, the most recent event is outside the 45-day period proscribed by 29 C.F.R. § 1614.105(a)(1). Complainant stated, on appeal, that she “[f]elt she had been wronged by the Agency, specifically [A1], and sought legal advice.” Thus, we find, based on the facts of this case, that she reasonably should have suspected discrimination based on A1’s actions prior to February 3, 2020. EEOC Regulation 29 C.F.R. §1614.105(a)(2) allows the Agency or the Commission to extend the time limit if a complainant can establish that he or she was not aware of the time limit, that they did not know and reasonably should not have known that the discriminatory matter or personnel action occurred, that despite due diligence he or she was prevented by circumstances beyond their control from contacting the EEO Counselor within the time limit, or for other reasons considered sufficient by the Agency or Commission. We do not find persuasive Complainant’s assertion that she was unaware that a contractor could file an EEO complaint with the Agency regarding workplace harassment or that she was not aware of the 45-day time limit. There is no dispute that Complainant attended the HFW training on October 23, 2020. The fact that she was required to attend the training, and that her attendance was recorded, is indicative that contractors are covered by the Agency’s anti- harassment policies. Unlike prior Commission decisions where agencies merely stated that posters containing information about the applicable timeframes were on display in its workplaces, D1, specifically, attested to the fact that all participants in the HFW training are routinely told about the 45-day time limitation period. Complainant does not allege that this information was not provided at her training.3 3 Like Complainant, we agree that where there is an issue of timeliness, “[a]n agency always bears the burden of obtaining sufficient information to support a reasoned determination as to timeliness.” Guy, v. Dep’t of Energy, EEOC Request No. 05930703 (Jan. 4, 1994) (quoting Williams v. Dep’t of Defense, EEOC Request No. 05920506 (Aug. 25, 1992)). In addition, in Ericson v. Dep’t of the Army, EEOC Request No. 05920623 (Jan. 14, 1993), the Commission stated that “the agency has the burden of providing evidence and/or proof to support its final decisions.” In this case, however, we find that the Agency has sufficiently met its burden. 2021000965 5 CONCLUSION Accordingly, the Agency’s final decision dismissing Complainant’s complaint is AFFIRMED. Complainant has presented no persuasive arguments or evidence warranting an extension of the time limit for initiating EEO counselor contact.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). 4 In reaching the above determination, we are also cognizant of the fact that Complainant waited an additional 15 days after talking to her attorney, on February 10, 2020, before contacting an EEO counselor. 2021000965 6 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. 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 April 4, 2022 Date