U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Christopher U.,1 Complainant, v. Bill Nelson, Administrator, National Aeronautics and Space Administration (Johnson Space Center), Agency. Appeal No. 2022003246 Agency No. NCN-21-JSC-00029 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's decision dated April 25, 2022, 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. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Facilities and Environmental Factors Engineer, GS-0861-15, at the Agency’s Commercial Crew Program facility in Houston, Texas. On January 31, 2022, Complainant filed a formal complaint alleging that the Agency subjected him to a hostile work environment on the basis of reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 when: 1. In 2014, Complainant received the lowest performance rating of his [Agency] career and received no time-off or cash award. 2. On unspecified dates since 2014 and 2017, Complainant was denied interviews and promotions on several [Agency] jobs despite significantly better qualifications outlined in the application evaluation criteria when compared to 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. 2022003246 2 other candidates who were given interviews and eventually promoted. 3. On unspecified dates since 2014 and 2017, Complainant was denied an interview as a Mission Specialist despite the significant improvements to his application since 2000 when he was selected for an interview. 4. On unspecified dates since 2014 and 2017, Complainant has not received an award or any recognition from the Commercial Crew Program (C[C]P) despite stellar performance as the Risk Manager. 5. On unspecified dates since 2014 and 2017, Complainant has received derogatory comments about him and his job as Risk Manager during the various Program Control and Technical Control Boards and other Program Meeting forums from the CCP Program Managers and others on the boards. 6. On unspecified dates since 2014, Complainant has been removed from participating in the C[C]P Quarterly meetings. 7. On unspecified dates since 2014, Complainant has been removed from a decision-making role on the Program Control and Technical Control Boards for Commercial Crew. 8. On unspecified dates since 2014, Complainant has not been allowed to present his risk management work to external organizations such as the Aerospace Safety Advisory Panel (ASAP), Source Review Board (SRB), Office of Inspector General (OIG), and Government Accountability Office (GAO). 9. On unspecified dates since 2014, other people on the CCP have been given credit for Complainant’s work. 10. On July 2, 2020, the current CCP Program Manager committed to meet with Complainant regarding the negative comments and reprisal but did not schedule a meeting. 11. On June 22, 2021, derogatory comments about risk work at the Program Control and Technical Control Boards were made to Complainant. 12. On July 19, 2021, Complainant was excluded from a Flight Readiness Review for a Boeing OFT2 [Orbital Flight Test-2] Mission meeting. The Agency dismissed the complaint in its entirety for failure to timely file the formal complaint, pursuant to 29 C.F.R. § 1614.107(a)(2). The Agency reasoned that Complainant received the Notice of Right to File a Formal Complaint (“Notice”) on October 15, 2021, via email, and Complainant confirmed receipt on the same day. However, he did not file his formal complaint until January 31, 2022. Thus, he failed to comply with the fifteen-day time limit. CONTENTIONS ON APPEAL On appeal, Complainant argues that the Notice of October 15, 2021, was not signed by the Deputy Complaints Manager, though Complainant acknowledges signing the Notice and returning it. However, Complainant asserts, no copy of the Notice was returned to him. He also contends that the docket numbers were wrong. As a result, he was confused about when his formal reprisal complaint should have been submitted. Complainant asserts that he should 2022003246 3 have been notified of the submission date for his reprisal complaint and given an explanation as to why the Deputy Complaints Manager did not sign the Notice prior to the deadline. Complainant asks that we reverse the dismissal and remand to the Agency for investigation. The Agency disputes that anything about the Notice was confusing and asserts that Complainant was wrong about the docket numbers. Furthermore, the Agency proposes, Complainant’s having two different complaints at the same time is not adequate justification for tolling the 15-day time limit for filing the formal complaint. As for the Deputy Complaint Manager’s missing signature on the Notice, the Agency contends that (1) the lack of a signature would not cause confusion as to the meaning of the Notice and (2) such a signature is not required by the Commission. Moreover, the Agency maintains, because Complainant had recently filed another EEO complaint, he had constructive knowledge of the EEO process. The Agency asks that we affirm its dismissal. ANALYSIS AND FINDINGS EEOC Regulation 29 C.F.R. § 1614.106(b) requires the filing of a complaint with an appropriate agency official within fifteen (15) calendar days after receipt of the notice of the right to file a formal complaint. 29 C.F.R. § 1614.107(a)(2) provides that the agency shall dismiss a complaint that fails to comply with the applicable time limits contained in §§§ 1614.105, .106, and .204(c), unless the agency extends the time limits in accordance with § 1614.604(c). Here, the record includes an email from Complainant indicating he received the Notice on October 15, 2021. The record also includes a copy of the email via which Complainant filed his formal complaint, dated January 31, 2022, which is more than 15 days after Complainant received the Notice. We are not persuaded by Complainant’s arguments on appeal, including his assertions that the Notice was unsigned and negligent, and the docket number was incorrect. We find he has not submitted evidence sufficient to establish that his complaint was received within 15 days, nor has he provided adequate justification to extend or toll the time limit. See 29 C.F.R. § 1614.604(c). Thus, we find that his complaint was properly dismissed as untimely filed. CONCLUSION Accordingly, we AFFIRM the Agency’s final decision dismissing Complainant’s complaint. 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: 2022003246 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. 2022003246 5 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. 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 08, 2022 Date
