[Redacted], Clarine L., 1 Complainant,v.John E. Whitley, Acting Secretary, Department of the Army, Agency.

Equal Employment Opportunity Commission

Feb 22, 2021

Appeal No. 2021000935 (E.E.O.C. Feb. 22, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Clarine L.,1 Complainant, v. John E. Whitley, Acting Secretary, Department of the Army, Agency. Appeal No. 2021000935 Agency No. ARUSAR20SEP02731 DECISION Complainant timely appealed with the Equal Employment Opportunity Commission (“EEOC” or “Commission”) from the Agency’s October 26, 2020, dismissal of her complaint of unlawful employment discrimination under 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 working as the Family Programs Director, GS-12, at the United States Army Reserve, 1st Mission Support Command (“MSC”), in Fort Buchanan, Puerto Rico. On October 14, 2020, Complainant filed a Formal EEO Complaint alleging that the Agency subjected her to a hostile work environment/harassment and discrimination as reprisal for engaging in protected EEO activity when: (a) on June 28, 2020, Complainant was required to serve a 12-day suspension, issued by a Chief of Staff outside of Complainant’s rating chain; 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. 2021000935 2 (b) the Army Regulation (“AR”) 15-6 Investigation into Family Programs was not conducted in accordance with regulations; and, (c) on September 1, 2020, the 1st MSC Commanding General denied her administrative grievance on the June 28, 2020 suspension. The Agency dismissed Claim (a) for untimely contact with an EEO Counselor, pursuant to 29 C.F.R. 1614.107(a)(2) and §1614.105(a)(1), and dismissed Claims (b) and (c) for failure to state a claim, pursuant to 29 C.F.R. § 1614.107(a)(1). The instant appeal followed. ANALYSIS AND FINDINGS In relevant part, 29 C.F.R. §1614.107(a)(2) states that an agency shall dismiss a complaint or a portion of a complaint that fails to comply with the applicable time limits contained in §1614.105. Under §1614.105(a)(1), an aggrieved person must initiate contact with an EEOC 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 alleged discriminatory act in Claim (a), a 12-day suspension, is a personnel action, so the 45- day limitation period was triggered on June 28, 2020, the effective date of the suspension. For her complaint to be considered timely, Complainant needed to initiate EEO contact no later than August 12, 2020. Complainant did not initiate EEO contact until September 4, 2020. Under 29 C.F.R. §1614.105(a)(2), an agency or the Commission may extend the time limit if complainant establishes that he or she was not aware of the time limit, did not know and reasonably should not have known that the discriminatory matter or personnel action occurred, that despite due diligence he or she was prevented by circumstances beyond his or her control from contacting the EEO Counselor within the time limit, or for other reasons considered sufficient by the agency or Commission. On appeal, Complainant asks the Commission to excuse the delay, explaining that she was in shock and under tremendous stress when she learned that she would be suspended. She also experienced stress and inconveniences related to damages caused by earthquakes and Hurricane Maria, including unreliable electricity. Further, Complainant explains that at the time, her city was under partial lockdown due to the pandemic. As “non-essential personnel” she was required to work from home during much of the time, and with the electricity issues, it was a challenge to both work and contact an EEO Counselor. While we sympathize with Complainant’s circumstances, the record establishes that on July 8, 2020, she managed to timely submit a 20-page administrative grievance in response to the June 24, 2020 Notice of Suspension. Complainant was not specific with respect to when the earthquakes occurred, or how they impacted her ability to contact an EEO Counselor. Based on the information at hand, in this instance, an extension is not warranted. 2021000935 3 Claims (b) and (c) must also be found untimely because neither claim can be separated from the June 28, 2020 suspension that was untimely raised in Claim (a). The allegation in Claim (b) challenges the methodology and findings of the AR 15-6 Investigation, which Management relied on when determining whether to issue the June 28, 2020 suspension. Thus, Claim (b) is essentially providing Complainant’s supporting argument for Claim (a) rather than stating a separate claim of reprisal. Claim (c) arises from Complainant’s use of the Agency’s internal administrative grievance procedure to challenge the June 28, 2020 suspension. The Commission has consistently held that the utilization of agency grievance procedures and other remedial processes does not toll the time limit for contacting an EEO Counselor. See Ellis v. United States Postal Serv., EEOC Appeal No. 01992093 (Nov. 29, 2000). CONCLUSION Accordingly, the Agency's final decision dismissing Complainant's 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). 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. 2021000935 4 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. 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 February 22, 2021 Date