U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Breanne H.,1 Complainant, v. Alejandro N. Mayorkas, Secretary, Department of Homeland Security (Immigration and Customs Enforcement), Agency. Appeal No. 2020004873 Hearing No. 510202000113X Agency No. HSICE027052018 DECISION Complainant timely appealed, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s July 20, 2020 Final Order concerning an equal employment opportunity (“EEO”) complaint alleging 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 At the time of events giving rise to this complaint, Complainant was serving a temporary promotion as a GS-14 Criminal Investigator with the Agency’s Office of Professional Responsibility (“OPR”) in Tampa, Florida. On January 2, 2019, Complainant filed a formal EEO complaint alleging that the Agency discriminated against her on the basis of sex (female) when she was forced to transfer from OPR Tampa back to her permanent GS-13 position, prior to completion of her 5-year temporary assignment as a GS-14. 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. 2020004873 2 After its investigation into the complaint, the Agency provided Complainant with a copy of the report of investigation (“ROI”) and notice of her right to request a hearing before an Equal Employment Opportunity Commission (“EEOC” or “Commission”) Administrative Judge (“AJ”). Complainant timely requested a hearing. On April 10, 2020, the Agency submitted a Motion to Dismiss on procedural grounds, pursuant to §1614.107(a)(2), for untimely EEO Counselor contact. The record contains the following relevant facts: On February 18, 2007, Complainant began her temporary promotion at GS-14. At least two male employees were also temporarily promoted to GS-14 at OPR Tampa under the same vacancy announcement.2 They all reported to the OPR Resident Agent in Charge as their first level supervisor (“S1”). At the time, Complainant was the only female employee in the office. In August 2010, Complainant was transferred/demoted back to her permanent GS-13 position. To Complainant’s knowledge, none of her male comparators were transferred or demoted prior to the end of the 5-year promotion, and at least one retained the “temporary” position for over 5 years. At the time, Complainant attributed the transfer to her disagreements with S1 about how OPR Tampa was managed and because she filed whistleblower complaints about S1’s managerial decisions. On or about June 13, 2018, Complainant was interviewed by an OPR Special Agent (“SA”) conducting an internal investigation of allegations that S1 created a “hostile work environment” for another employee. By Complainant’s account, during the interview, SA never specified that the hostile work environment was the result of discrimination. She recounts that in her decades working for the Agency, she was often the only woman in the office, including an office of 40 colleagues, but never felt she was discriminated against by her chain of command and had no cause to assume the investigation concerned discrimination. However, she also states that SA “directly asked if she had experienced any sexual discrimination by [S1].” Complainant definitively responded that she had not, and instead recounted her differences of opinion with S1 and examples of how he mismanaged OPR Tampa. On August 14, 2018, Complainant emailed a two-page statement to the SA who interviewed her, revealing that she had since concluded that S1 subjected her to sex discrimination. According to Complainant, sometime in August 2018, she learned through “the rumor mill” that the SA’s “hostile work environment” investigation of S1 also alleged sexual misconduct. 2 We note that the record is inconsistent on the number of comparator employees, as 2 or 3 are identified in the ROI affidavits, yet the EEO Investigator made multiple attempts to obtain data on 8 comparator employees, and Complainant asserts that because the vacancy announcement was issued “nation-wide” all selectees should be considered as comparators, not just selectees placed in OPR Tampa. However, this decision is limited to the procedural matter of timeliness, so we decline to make a determination on comparator employees. 2020004873 3 Through “casual conversations with friends and associates” about their experiences with S1, Complainant said she came to believe that S1 engaged in a pattern of discriminatory conduct toward female employees, which included his decision to prematurely transfer/demote her from her temporary promotion. Complainant contacted an EEO Counselor on September 19, 2018. On June 25, 2020, the AJ granted the Agency’s Motion to Dismiss, finding that Complainant failed to timely raise the matter with an EEO Counselor pursuant to 29 C.F.R. §1614.107(a)(2). The Agency adopted the AJ’s decision and the instant appeal from Complainant followed. ANALYSIS AND FINDINGS Timeliness - Initial EEO Contact Under 29 C.F.R. § 1614.105(a)(1), complaints of discrimination should be brought to the attention of the 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 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. McLoughlin v. Dep’t of the Treas., EEOC Appeal No. 05A01093 (Apr. 24, 2003). An EEO complaint or a portion of a complaint that fails to comply with the applicable time limits may be dismissed pursuant to 29 C.F.R. §1614.107(a)(2). Here, Complainant was aware of her alleged premature transfer/demotion (a personnel action) when it occurred in August 2010, and, according to her account of record, was notified of the action a few months prior. She did not seek counseling until September 19, 2018. Complainant argues that, despite the eight-year time gap, her EEO counseling contact was timely based on the date she first had reasonable suspicion of discrimination. Alternately, Complainant requests an extension of the limitation period pursuant to 29 C.F.R. §1614.604(c). The Agency argues that due to the eight-year delay in contacting an EEO Counselor, Complainant’s complaint must be dismissed as untimely. In the alternative, the Agency argues that sufficient evidence exists that indicates that the latest day Complainant can claim to have “reasonably suspected” discrimination was no later than June 13, 2018, when the SA interviewed Complainant regarding a “hostile work environment” caused by S1, in which case, the last day to timely contact an EEO Counselor fell on Monday, July 30, 2018, again supporting untimely EEO contact. The AJ determined that Complainant failed to timely contact an EEO Counselor because the evidence reflected that reasonable suspicion existed in August 2010, on or around the time the alleged discriminatory act occurred. The AJ reasoned that Complainant conceded that she believed that “something was wrong” at the time of the premature transfer/demotion. 2020004873 4 The AJ further concluded that Complainant did not provide sufficient evidence to support her contention that she lacked reasonable suspicion of discrimination until August 14, 2018. On appeal, and in her Response to the Agency’s Motion to Dismiss (“Response Motion”), Complainant contends that she did not reasonably suspect discrimination until on or about August 14, 2018. Complainant clarifies that she suspected “something was wrong” at the time of her premature transfer/demotion, as well as during the June 13, 2018 interview, but she did not suspect that S1 was motivated by sex discrimination until August 2018, when the “rumor mill” revealed that S1 was investigated for allegations of (unspecified) incidents of sexual misconduct, and she conversed with her coworkers about their experiences with S1. We conclude that reasonable suspicion existed no later than June 13, 2018. It is undisputed that the SA asked Complainant directly if S1 subjected her to sex discrimination while interviewing her about S1 causing a “hostile work environment.” By then, Complainant was aware of at least two male comparator employees who received favorable treatment, as their temporary promotions lasted the full 5 years. She also testified that she was unaware of any other employee whose promotion was cut short. We note that Complainant credits the January 13, 2018 interview with first making her aware that her managers at the time of her premature transfer/demotion allegedly protected S1 and “were complicit in the decision to demote her.” Even if certain facts were not apparent to Complainant, such as the nature of the “hostile work environment” the SA was investigating, and the experiences of her colleagues, she had enough information by June 13, 2018 to trigger reasonable suspicion. See McLoughlin. On appeal Complainant appears to also argue that an extension is warranted because she was prevented from timely contacting an EEO Counselor reasoning that as a “paramilitary organization,” the Agency “frowns upon” questioning orders or the underlying reasons for an order. Thus, even though her appeal repeatedly characterizes her managers’ response as “summarily dismissing” her requests for an explanation as to why her temporary promotion was cut short, “for years she believed these individuals were acting in good faith and she complied.” However, the Commission has consistently held that fear of reprisal (e.g. consequences for questioning orders) is an insufficient justification for extending the time limitation for contacting an EEO counselor. See Parker v. Dep’t of Veterans Affairs, EEOC Request No. 05940436 (Feb. 9, 1995), see also Duncan v. Dep’t of Veterans Affairs, EEOC Request No. 05970315 (July 10, 1998) (fear of reprisal does not justify untimeliness when complainant articulates no concrete reason to fear retaliation, and noting that the complainant's claimed fear was not credible given his prior EEO contact). Moreover, Complainant’s assertions are incongruous with the record, which reveals that during the relevant time frame, she pursued whistleblower complaints naming S1 and his subordinates. We decline to extend the limitation period for the reasons proffered by Complainant. Complainant’s claim that S1’s act of prematurely transferring/demoting her in August 2010 was properly dismissed as untimely in accordance with 29 C.F.R. §1614.107(a)(2). Timeliness - Lilly Ledbetter Fair Pay Act 2020004873 5 The Lilly Ledbetter Fair Pay Act of 2009 (“Ledbetter Act”), Pub. L. No. 111-2, 123 Stat. 5 applies to all claims of discrimination in compensation, pending on or after May 28, 2007, under Title VII, the Rehabilitation Act, and the Age Discrimination in Employment Act (“ADEA”). For purposes of timeliness, when a complainant should have formed a reasonable suspicion of discrimination is not determinative. Kirby S. v. Dep’t of State, EEOC Appeal No. 2021001072 (Feb. 23, 2021). The Commission has concluded, per Section 3 of the Ledbetter Act, that when a complainant asserts that due to an agency’s discriminatory action they are getting paid less than they are entitled to receive, the complainant is “affected by the Agency's action each time [they] receive a paycheck.” Rosado-Agosto v. Dep’t of Veterans Affairs, EEOC Appeal No. 0120102063 (Sept. 27, 2010) (reversing dismissal for untimely EEO contact, as Ledbetter Act applied to a complainant’s allegation that the agency lowered her grade after she sustained an on- the-job injury, as it caused her to receive less pay) citing Mitchell v. Dep't of Veteran's Affairs, EEOC Appeal No. 0120100361 (April 6, 2010) (applying the Ledbetter Act to an allegation of compensation discrimination when an employee was hired at a lower grade classification). Thus, the 45-day filing period is triggered every time a complainant is issued a paycheck where the amount reflects the result of a “discriminatory compensation decision or other process.” On appeal, Complainant argues that her complaint alleges a violation of the Ledbetter Act, and therefore should be considered timely. In response to Complainant’s appeal, the Agency, citing 29 C.F.R. 1614.104, 1614.404 (a-b), asserts that Complainant’s pay discrimination complaint cannot be raised on appeal because she failed to raise the issue to the AJ and no new evidence has come to light since her complaint was dismissed. We note that the Commission has long held that new claims may not be raised for the first time on appeal. See Hubbard v. Dep't of Homeland Sec., EEOC Appeal No. 01A40449 (Apr. 22, 2004). Upon review, we determine that the record supports that Complainant, through her non-attorney representative, consistently raised the issue of pay discrimination at every stage of her complaint starting with her January 2, 2019 formal complaint which identifies the harm arising from the discriminatory act in terms of a wage disparity. The formal complaint approximates that Complainant earned $23,000 less than she would have if she remained in the GS-14 position for the full 5 years. An October 28, 2019 letter to the EEO Investigator, from Complainant’s non- attorney representative, reiterated “[i]t should be noted that [Complainant] identifies that she has had a loss of pay for the period of the temporary promotion….” In her November 23, 2019 Investigative Report, Form 2340, the EEO Investigator identifies the remedies Complainant seeks in terms of a pay disparity, stating, “In order to resolve this complaint, Complainant seeks…monetary compensation for approximately 1-1/2 years for the difference between the GS-14 salary she should have received and the GS-13 salary she received…[emphasis added].” Complainant’s Preliminary Case Information (“PCI”) submitted to the AJ and her response to the motion to dismiss indicates that “the crux of this complaint is that unlike the Complainant, male comparators were permitted to remain the full 5-year period described in the vacancy announcement….” The allegation that Complainant did not keep the promotion for the same amount of time as her comparators is sufficient to raise an issue of compensation discrimination. As such, we conclude that we must also consider the timeliness of Complainant’s pay discrimination allegation under the Ledbetter Act. 2020004873 6 However, in now considering the timeliness of Complainant’s pay discrimination allegation under the Ledbetter Act, we note that Complainant’s temporary promotion became effective on February 18, 2007. She was demoted back to her GS-13 position on August 2010. As the temporary promotion was anticipated to last for five years, and the record indicates all the comparators retained the promotion for the five-year period, Complainant reasonably anticipated receiving the GS-14 pay until February 2012. However, she did not seek EEO counseling on the matter until September 19, 2018, more than six years after her pay was no longer being affected by the alleged discrimination. As such, we conclude her initial EEO counseling contact was also untimely made as to her pay discrimination claim. In so finding, we note that Complainant argues that her GS-14 pay may have continued beyond the five-year temporary promotion, but we conclude that this is too speculative to justify her untimely pursuit of this pay issue which she was clearly fully aware of in 2012. CONCLUSION The Agency’s adoption of the AJ’s determination that Complainant’s complaint was untimely pursuant to 29 C.F.R. §1614.107(a)(2) is AFFIRMED, with the analysis as modified above. 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 2020004873 7 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. 2020004873 8 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 December 21, 2021 Date