[Redacted], Burt V., 1 Complainant,v.William J. Burns, Director, Central Intelligence Agency, Agency.

Equal Employment Opportunity Commission

Aug 9, 2021

Appeal No. 2020002659 (E.E.O.C. Aug. 9, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Burt V.,1 Complainant, v. William J. Burns, Director, Central Intelligence Agency, Agency. Appeal No. 2020002659 Hearing Nos. 570-2018-00066X and 570-2019-01369X Agency Nos. 20-08, 15-11, 15-27 and 17-06 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's decision dated January 16, 2020, dismissing his 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., Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. BACKGROUND During the period at issue, Complainant worked as a Logistics Officer, Grade GS-12, Step 6, at the Agency’s facility in Washington, District of Columbia. Complainant previously filed two other formal EEO complaints (Agency Nos. 15-11, 15-27 and 17-06). Complainant requested a hearing (Hearing Nos. 570-2018-00066X and 570-2019-01369X) before an EEOC Administrative Judge AJ. On October 16, 2019, Complainant moved to amend his claims to include twenty additional allegations of retaliatory harassment. On November 6, 2019, the AJ then assigned to the case denied Complainant’s motion to amend. 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 2020002659 In rendering that decision, the AJ found that the retaliatory harassment claims were not like or related to Complainant’s prior claims that were pending at the hearing. The AJ ordered the Agency to process the claims from the amended complaint as a separate EEO matter. The AJ also determined that the date Complainant filed the motion to amend would serve as the operable date for EEO Counselor contact on the claims from Complainant’s motion to amend. On December 20, 2019, Complainant filed a formal complaint alleging that the Agency subjected him to discrimination on the bases of national origin, (Filipino/Portuguese), race (Pacific Islander), sex (male), religion (Baptist), disability (mental and genetic impairment), age (63), and in reprisal for prior protected EEO activity under Title VII when: a. On an unspecified date, a rotten apple was left on the front porch of Complainant's residence; b. On an unspecified date, a large white plastic ball on Complainant's mailbox at his residence was removed; c. On an unspecified date, while nearing his residence one evening, Complainant observed the Chief/Applicant Branch, conducting a meeting with other Agency officers outside their vehicles; d. On an unspecified date, upon departing the Silver Diner restaurant with his mother, Complainant witnessed an Agency employee pull out a small digital camera from a tan colored case and proceed to take pictures of Complainant's mother’s vehicle; e. Several times a week, on unspecified dates, Complainant would find his left front tire on his personal vehicle with low air pressure despite being advised by a tire store employee that there were no nails or punctures in his tire that would cause this loss of air pressure; f. On an unspecified date, Complainant found a “huge” unwrapped Hershey chocolate bar in the back yard of his personal residence; g. On an unspecified date, Complainant’s healthy German Shepard, suspiciously and suddenly became ill and died; h. On an unspecified date, after parking his vehicle across the street from his mother’s residence, Complainant noticed a 5’10” man in a tan, Carhart, heavy, full-length, hooded jacket walking slowly on the sidewalk in front of his mother’s house and this man re- appeared a bit later while Complainant was letting the dog out; this man also approached while Complainant was getting out of his vehicle, and blocked Complainant’s path but then stepped aside and walked on; 3 2020002659 i. On 20 January 2010, an Agency employee from the Office of the Director of National Intelligence (ODNI) Director's Policy Staff (DPS), questioned Complainant as to who he voted for in the previous Presidential election during a promotion panel feedback meeting; j. On 25 March 2010, two DPS black SUVs with subdued law enforcement lights' followed Complainant's personal vehicle as he drove home; k. On 17 March 2016, a caustic chemical was placed in Complainant's work gloves at work; l. On 26 April 2017, a Security Protective Policy Staff Officer shadowed and followed Complainant in a cream colored sedan; m. On 31 January 2018, a semi-crumbled piece of paper was placed in the back of Complainant's residence that had large letters "R.I.P." (which Complainant understood to mean 'Rest In Peace') written on it; n. On 04 February 2018, a SPSO officer trailed Complainant at a public shopping area; o. On 31 March 2018, Complainant noticed a white van occupied by two Caucasian males, loitering in his neighborhood; p. On 23 April 2018, Complainant returned to his personal residence to find his front door dead bolt unlocked, with no forcible entry; q. On 25 April 2018, Complainant noticed a silver Toyota occupied by a Caucasian male in his 50's parked near Complainant's residence surveilling Complainant; r. On 19 June 2018, Complainant noticed a white Hyundai sedan occupied by an African- American female surveilling Complainant; s. In late September 2018 or early October 2018, the word "SLEEPER" was written in red ink on an expired post card and placed in Complainant's mailbox at his residence; and t. On 28 November 2018, the DPS Team Lead asked Complainant what city he lived in. u. On 14 December 2019, a metal flag on Complainant’s mailbox was vandalized and discovered in the morning hours of that day. On January 16, 2020, the Agency issued a final decision dismissing claims (a) through (t) for untimely EEO Counselor contact, pursuant to 29 C.F.R. § 1614.107(a)(2). The Agency dismissed claim (u) pursuant to 29 C.F.R. § 1614.107(a)(1), for failure to state a claim. 4 2020002659 ANALYSIS AND FINDINGS Upon review, the Commission finds claims (a) through (t) were properly dismissed pursuant to 29 C.F.R. § 1614.107(a)(2), for untimely EEO Counselor contact. The record revealed that the events described in Claims (a) through (t) occurred between January 20, 2010 and December 14, 2018 or on dates that were otherwise unspecified. Complainant did not initiate contact with an EEO Counselor until October 16, 2019, which is beyond the forty-five (45) day limitation period. On appeal, Complainant has presented no arguments or evidence warranting an extension of the time limit for initiating EEO Counselor contact. EEOC Regulation 29 C.F.R. §1614.107(a)(1) authorizes dismissal of a complaint for failure to state a state a claim within the meaning of 29 C.F.R. §1614.103. The claim must concern an employment policy or practice which affects the individual in his or her capacity as an employee or applicant for employment. 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). In claim (u), Complainant alleged that his mailbox flag at his residence was vandalized on December 14, 2019. Complainant failed to show any connection between the vandalization and his employment. The dismissal of claim (u) for failure to state a claim was proper. CONCLUSION Therefore, the Commission AFFIRMS the Agency's final decision dismissing the complaint for the reasons set forth herein. 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. 5 2020002659 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. 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. 6 2020002659 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 9, 2021 Date