[Redacted], Christena H., 1 Complainant,v.Lloyd J. Austin III, Secretary, Department of Defense (Defense Logistics Agency), Agency.

Equal Employment Opportunity Commission

Jul 21, 2021

Appeal No. 2021003173 (E.E.O.C. Jul. 21, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Christena H.,1 Complainant, v. Lloyd J. Austin III, Secretary, Department of Defense (Defense Logistics Agency), Agency. Appeal No. 2021003173 Agency No. DLAF-21-0086 DECISION Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency’s decision dated April 8, 2021, dismissing her complaint of unlawful employment discrimination in violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Human Resource Specialist, GS-12, at the Agency’s DLA HR Enterprise Operations, Injury Compensation facility in Fort Belvoir, Virginia. On March 20, 2021, Complainant filed a formal complaint alleging that the Agency subjected her to discrimination based on disability when, as defined by the Agency: 1. On an unspecified date, Complainant was verbally harassed and told she was not meeting her suspenses on time; 2. On an unspecified date, Complainant’s caseload was more than the other employees in the office; 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. 2021003173 2 3. On an unspecified date, Complainant was being micromanaged and her work was being closely monitored; and 4. On an unspecified date, she was denied use of the Physical Fitness Program. In its April 8, 2021 decision, the Agency dismissed the formal complaint for untimely EEO Counselor contact, pursuant to 29 C.F.R. § 1614.107(a)(2). The Agency concluded that Complainant did not provide specific dates of the alleged discriminatory incidents, but that the last possible date discrimination could have occurred was on October 8, 2020, because Complainant went on leave without pay (LWOP) status on that date. The Agency determined that Complainant’s initial EEO counselor contact occurred on February 5, 2021, which it found to be beyond the 45-day limitation period. The instant appeal followed. Complainant on appeal argues that she initiated EEO counselor contact on October 14, 2020, and that she had indicated during the complaint process that the harassment was an ongoing issue through October 2020. She therefore argues that her initial EEO counselor contact was timely or, in the alternative, that any deadlines during the counseling process should be equitably tolled, pursuant to 29 C.F.R. § 1614.604(c), due to the serious medical condition that caused her to be out on LWOP. The Agency contends on appeal that while Complainant had initially contacted the EEO counselor on October 14, 2020, she withdrew from the complaint process and subsequently reinitiated counselor contact on February 5, 2021. Calculating from the later date, the Agency argues that Complainant’s EEO counselor contact was untimely. ANALYSIS AND FINDINGS We find that the Agency improperly dismissed Complainant’s complaint for untimely EEO counselor contact. 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 45 days of the date of the matter alleged to be discriminatory or, in the case of 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. EEOC Regulations provide that the Agency or the Commission shall extend the time limits when the individual shows that he was not notified of the time limits and was not otherwise aware of them, that he did not know and reasonably should not have known that the discriminatory matter or personnel action occurred, that despite due diligence he was prevented by circumstances 2021003173 3 beyond his control from contacting the Counselor within the time limits, or for other reasons considered sufficient by the Agency or the Commission. 29 C.F.R. § 1614.105(a)(2). Here, there is no evidence in the record that Complainant withdrew her request to pursue the EEO complaint process. To support its position, the Agency points to a letter the EEO Counselor apparently sent to Complainant on January 27, 2021, which stated that Complainant indicated she no longer wished to pursue the complaint process at that time. However, the record contains no evidence showing that Complainant actually indicated such an intention. In fact, the Agency in its brief on appeal now argues that the complaint process was closed on January 27, 2021 due to Complainant’s unresponsiveness, despite there being no mention of this reason in the January letter to Complainant. On February 5, 2021 (in the week after January 27, 2021), Complainant sent an email to the EEO counselor submitting additional documents in support of her claims and did not make any reference to reopening the complaint process or reinitiating EEO counseling. Upon review of the entire record, there is no evidence that it was Complainant’s understanding that the complaint process had been closed or that she ever desired to rescind the request to pursue her claims. The record further shows that in her formal complaint, Complainant provided a list of dates on which she claims discrimination occurred. The most recent date provided in the complaint was October 8, 2020.2 Because there is no evidence Complainant intended to withdraw from the complaint process, we accept October 14, 2020 as the date of initial EEO counselor contact. See, e.g., Kane, Jr. v. Soc. Sec. Admin., EEOC Appeal No. 01A03295 (Mar. 14, 2001) (Commission reversed Agency’s dismissal for untimely EEO counselor contact where “the evidentiary file is void of information indicating that complainant actually rescinded his request for counseling”). Accordingly, we find that Complainant’s initial EEO counselor contact was timely. 2 Some of the dates listed in Complainant’s formal complaint fall outside the 45-day window. However, Complainant alleges that she was subject to harassment. A hostile work environment claim will not be time barred if all acts constituting the claim are part of the same unlawful practice, even if some component acts of hostile work environment fall outside the statutory time period. National Railroad Passenger Corporation v. Morgan, Jr., 536 U.S. 101, 117 (2002). Pursuant to Morgan, an overall claim of harassment is timely if, as here it appears at this stage of the proceeding, all the acts constituting the claim are part of the same unlawful practice and at least one act falls within the filing period. 2021003173 4 CONCLUSION The Agency’s final decision dismissing the formal complaint on the grounds of untimely EEO Counselor contact is REVERSED and the complaint is REMANDED to the Agency for further processing pursuant to the following Order. ORDER (E0618) The Agency is ordered to process the remanded claims in accordance with 29 C.F.R. § 1614.108. The Agency shall acknowledge to the Complainant that it has received the remanded claims within thirty (30) calendar days of the date this decision is issued. The Agency shall issue to Complainant a copy of the investigative file and also shall notify Complainant of the appropriate rights within one hundred fifty (150) calendar days of the date this decision was issued, unless the matter is otherwise resolved prior to that time. If the Complainant requests a final decision without a hearing, the Agency shall issue a final decision within sixty (60) days of receipt of Complainant’s request. As provided in the statement entitled “Implementation of the Commission’s Decision,” the Agency must send to the Compliance Officer: 1) a copy of the Agency’s letter of acknowledgment to Complainant, 2) a copy of the Agency’s notice that transmits the investigative file and notice of rights, and 3) either a copy of the complainant’s request for a hearing, a copy of complainant’s request for a FAD, or a statement from the agency that it did not receive a response from complainant by the end of the election period. IMPLEMENTATION OF THE COMMISSION’S DECISION (K0719) Under 29 C.F.R. § 1614.405(c) and § 1614.502, compliance with the Commission’s corrective action is mandatory. Within seven (7) calendar days of the completion of each ordered corrective action, the Agency shall submit via the Federal Sector EEO Portal (FedSEP) supporting documents in the digital format required by the Commission, referencing the compliance docket number under which compliance was being monitored. Once all compliance is complete, the Agency shall submit via FedSEP a final compliance report in the digital format required by the Commission. See 29 C.F.R. § 1614.403(g). The Agency’s final report must contain supporting documentation when previously not uploaded, and the Agency must send a copy of all submissions to the Complainant and his/her representative. If the Agency does not comply with the Commission’s order, the Complainant may petition the Commission for enforcement of the order. 29 C.F.R. § 1614.503(a). The Complainant also has the right to file a civil action to enforce compliance with the Commission’s order prior to or following an administrative petition for enforcement. See 29 C.F.R. §§ 1614.407, 1614.408, and 29 C.F.R. § 1614.503(g). Alternatively, the Complainant has the right to file a civil action on the underlying complaint in accordance with the paragraph below entitled “Right to File a Civil Action.” 29 C.F.R. §§ 1614.407 and 1614.408. A civil action for enforcement or a civil action on the underlying complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c) (1994 & Supp. IV 1999). 2021003173 5 If the Complainant files a civil action, the administrative processing of the complaint, including any petition for enforcement, will be terminated. See 29 C.F.R. § 1614.409. Failure by an agency to either file a compliance report or implement any of the orders set forth in this decision, without good cause shown, may result in the referral of this matter to the Office of Special Counsel pursuant to 29 C.F.R. § 1614.503(f) for enforcement by that agency. 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). 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. 2021003173 6 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 (R0610) This is a decision requiring the Agency to continue its administrative processing of your complaint. However, if you wish to file a civil action, you have the right to file such action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision. In the alternative, you may file a civil action after one hundred and eighty (180) calendar days of the date you filed your complaint with the Agency, or filed your appeal with the Commission. 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. 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 July 21, 2021 Date