U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Bernardina N.,1 Complainant, v. Xavier Becerra, Secretary, Department of Health and Human Services (Centers for Disease Control and Prevention), Agency. Appeal No. 2021004363 Agency No. HHS-CDC-0092-2021 DECISION Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's decision dated June 11, 2021, 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. For the following reasons, the Commission AFFIRMS the Agency’s final decision. ISSUE PRESENTED The issue presented is whether the Agency appropriately dismissed Complainant’s complaint for untimely EEO Counselor contact. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Management and Program Analyst, GS 13, at the Agency’s facility in Atlanta, Georgia. Believing that she was subjected to discrimination, Complainant contacted an EEO Counselor on January 19, 2021.2 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 EEO Counselor’s Report and the Agency’s decision originally misidentified the date of EEO counselor contact as January 20, 2021. 2021004363 2 Informal efforts to resolve Complainant’s concerns were unsuccessful. Subsequently, on April 15, 2021, Complainant filed a formal complaint alleging that the Agency discriminated against her on the bases of race (African-American) and sex (female) when: she learned on December 2 and 3, 20203, that a male employee was selected for a GS-14 position within the National Center for Environmental Health, Department of Health Science and Practice (NCEH/DEHSP), for which she was denied the opportunity to compete. On June 11, 2021, the Agency dismissed Complainant’s formal complaint for untimely EEO Counselor contact pursuant to 29 C.F.R. § 1614.107(a)(1). The Agency reasoned that to be timely, Complainant needed to initiate contact with an EEO Counselor by January 18, 2021. Therefore, her January 19, 2021 contact was one day beyond the time limit. CONTENTIONS ON APPEAL On appeal, Complainant argues that she timely contacted the EEO Counselor on January 19, 2020. Additionally, she contends that the regulations stipulate that “[a]ll time periods are subject to waiver, estoppel, and equitable tolling”, but does not elaborate further. The Agency asserts that when Complainant contacted the EEO Counselor, she initially identified the dates of alleged discrimination as December 7 and 8, 2020. However, the Counselor’s Report identifies December 2 and 3, 2020 as the dates of discrimination. Further, asserts the Agency, the Counselor’s Report notes that Complainant acknowledged that the dates of discrimination were December 2 and 3, 2020, and that her contact was outside the 45-day timeframe. As for misidentifying January 20, 2020 as the date of Complainant’s counselor contact in its decision, rather than January 19, 2020, the Agency admits its error but contends it does not impact its dismissal decision. ANALYSIS AND FINDINGS EEOC Regulation 29 C.F.R. §1614.107(a)(2) states that the Agency shall dismiss a complaint or a portion of a complaint that fails to comply with the applicable time limits contained in §1614.105, §1614.106 and §1614.204(c), unless the Agency extends the time limits in accordance with §1614.604(c). EEOC Regulation 29 C.F.R. §1614.105(a)(1), in turn, provides that an aggrieved person must 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. 3 The parties cite two dates, reasoning that Complainant first informally learned of the action before receiving a formal notification the next day. 2021004363 3 EEOC Regulation 29 C.F.R. §1614.105(a)(2) allows the Agency or the Commission to extend the time limit if Complainant can establish that Complainant was not aware of the time limit, that Complainant did not know and reasonably should not have known that the discriminatory matter or personnel action occurred, that despite due diligence complainant was prevented by circumstances beyond her control from contacting the EEO Counselor within the time limit, or for other reasons considered sufficient by the Agency or Commission. The record discloses that the alleged discriminatory event occurred on December 2 and 3, 2020. Complainant cited these dates in her formal complaint and in an email to the EEO Counselor, dated February 3, 2021, appended to her appeal. In her formal complaint, Complainant explained that she got her dates “mixed up” due to Covid-19, working from home, her children’s remote learning, and the holidays. The record reflects that Complainant did not contact an EEO Counselor until January 19, 2021, which Complainant herself concedes is “after the 45 days[.]” Even relying upon the later date of December 3, 2020, as the date of the alleged discriminatory event, Complainant’s counselor contact was one day past the time limit. The Commission has routinely found that contact made even one day beyond the 45-day timeline is untimely, in the absence of sufficient reasons. See Dulce P. v. Dep’t of the Navy, EEOC Appeal No. 0120162566 (October 14, 2016). In this matter, we find that Complainant has not presented any persuasive arguments or evidence warranting an extension of the time limit for initiating EEO Counselor contact. 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: 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). 2021004363 4 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. 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. 2021004363 5 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 October 20, 2021 Date
