[Redacted], Anya F., 1 Complainant,v.Lloyd J. Austin III, Secretary, Department of Defense (Office of the Secretary of Defense), Agency.

Equal Employment Opportunity Commission

Aug 2, 2022

Appeal No. 2022001960 (E.E.O.C. Aug. 2, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Anya F.,1 Complainant, v. Lloyd J. Austin III, Secretary, Department of Defense (Office of the Secretary of Defense), Agency. Appeal No. 2022001960 Agency No. DOD-2021-00047 DECISION Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's decision dated January 27, 2022, dismissing her 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., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Supervisory Financial Specialist for the Agency’s Office of the Chief Financial Officer (CFO) in Washington, D.C. On October 8, 2021, Complainant filed a formal complaint alleging that the Agency subjected her to hostile work environment on the bases of her race (African American), color (Black), sex (female), age, and reprisal. The Agency framed the claims as follows: 1. On January 11, 2021, leadership messed up her leave by trying to approve leave originally disapproved on July 13, 2020. 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. 2022001960 2 2. Around 16 February 2021, Employee 5 required her to use annual leave instead of administrative leave when she was out due to COVID-19. 3. On or Around March 11, 2021, management refused to upgrade her position, promote her, and increase her pay accordingly after Complainant’s position was classified as equivalent to a GG-0501-14, Supervisory Financial Specialist. 4. Around 11 March 2021, Employee 2 failed to give her a bonus of $10,000.00 for working at the GG14 level. 5. Employee 2 failed to provide her performance reviews for the FY 2014-2017 rating periods. 6. Around March 24 to April 13, 2021, Agency Director, Employee 3, failed to act on Complainant’s request to upgrade her position to GG-14. 7. As of October 8, 2021, the Office of the Inspector General (OIG) failed to follow up with Complainant regarding her EEO complaint and her intention to retire as of August 31, 2021. The Agency issued a decision dismissing claims (1) through (6) for untimely EEO Counselor contact, pursuant to 29 C.F.R. § 1614.107(a)(2). The Agency reasoned that Complainant’s June 24, 2021 contact was 72 days after the allegedly discriminatory events in claims (1) - (6). Further, it noted that Complainant had received training regarding the EEO process and had not provided a reason for her delayed contact. As for claim (7), which Complainant raised for the first time in her formal complaint, the Agency dismissed the matter for failure to state a claim. According to the Agency the claim was outside of the EEO administrative process and should be pursued through the Office of Inspector General (OIG) instead. Complainant filed the instant appeal. ANALYSIS AND FINDINGS Untimely EEO Counseling Contact: Claims (1) - (6) 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. 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 2022001960 3 limitation is not triggered until a complainant reasonably suspects discrimination, but before all the facts that support a charge of discrimination have become apparent. 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 her control from contacting the Counselor within the time limits, or for other reasons considered sufficient by the agency or the Commission. The record reflects that Complainant waited until June 24, 2021, to contact an EEO Counselor regarding events that occurred more than 45 days earlier. On appeal, Complainant appears to challenge the timing regarding the filing of her formal complaint and does not present any reason for her untimely contact with the EEO Counselor. Therefore, we find that the Agency’s dismissal of claims (1) through (6) was proper. Failure to State a Claim: Claim (7) Claim (7) was dismissed pursuant to 29 C.F.R. § 1614.107(a)(1), which provides, in relevant part, that an agency shall dismiss a complaint that fails to state 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). Complainant has failed to show that she suffered a specific harm or loss with respect to a term, condition, or privilege of employment for which there is a remedy. Moreover, we agree with the Agency that if Complainant wishes to pursue the matter she should do so through the OIG rather than the EEO complaint process. CONCLUSION Accordingly, the Agency's final decision dismissing the complaint 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: 2022001960 4 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). 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” 2022001960 5 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 August 02, 2022 Date