[Redacted], Corie E., 1 Complainant,v.Andrew M. Saul, Commissioner, Social Security Administration, Agency.Download PDFEqual Employment Opportunity CommissionFeb 11, 2021Appeal No. 2021000592 (E.E.O.C. Feb. 11, 2021) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Corie E.,1 Complainant, v. Andrew M. Saul, Commissioner, Social Security Administration, Agency. Appeal No. 2021000592 Agency No. PHI200709 DECISION Complainant appealed with the Equal Employment Opportunity Commission (“EEOC” or “Commission”) from a September 30, 2020 Final Agency Decision (“FAD”) dismissing 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., 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 At the time of events giving rise to this complaint, Complainant worked as a Mail Clerk, GS-04, at the Agency’s Mid-Atlantic Program Service Center ("MATPSC"), located in Philadelphia, Pennsylvania. On August 27, 2020, Complainant filed a formal EEO complaint raising the following allegations of discrimination: 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. 2021000592 2 A. Disparate treatment on the bases of race (African American), sex (female), disability (depression, anxiety, PTSD), age and reprisal (prior EEO activity)2 when: 1. on August 14, 2009, Management interfered with her right to arbitration by refusing to provide her with a written response to a 3rd Step Grievance; 2. on January 29, 2020, her first line supervisor (“S1”) issued her a written memorandum stating that Complainant was not allowed to work at her desk, even though there was no policy against doing so, and her peers could work at their desks; and 3. on March 20, 2020, Management denied her request for weather and safety leave and altered her time and attendance record without her permission or knowledge. B. Sexual harassment/hostile work environment on the basis of sex (female) beginning on October 26, 2018, when her second line supervisor (“S2”) forced himself into her personal space for a reason that was unidentifiable, or work related. The Agency dismissed Complainant’s complaint for untimely contact with an EEO Counselor, pursuant to 29 C.F.R. 1614.107(a)(2) and §1614.105(a)(1). Alternately, the Agency dismissed Claim 1 for failure to state a claim pursuant to 29 C.F.R. § 1614.107(a)(1). 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. Here, the date of Complainant’s initial EEO contact was July 31, 2020, so, applying the 45 day limitation period, we find that any alleged discriminatory acts that occurred, or were reasonably suspected to have occurred, prior to June 16, 2020 untimely. The most recent alleged instance of discrimination in this complaint occurred in March 2020. 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). 2 Reporting S2 to Management for sexual harassment; EEOC Hearing No. 530201800136X (consolidation of three complaints Complainant filed in 2016 and 2017 involving events and management officials from another office than this complaint; currently pending a hearing). 2021000592 3 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. See Complainant v. United States Postal Serv., EEOC Appeal No. 0120120499 (Apr. 19, 2012). For Claims A(1), A(2), and Claim B, the 45-day limitation period was triggered on the date of the alleged discriminatory events because reasonable suspicion arose at the same time. In the record, Complainant’s statements about her efforts to obtain compliance with the grievance process, and in contemporaneous emails, describe the allegations in Claims A(1), A(2), and Claim B, as a violation of her rights and harassment, establishing reasonable suspicion. 3 As for Claim A(3), we find that the 45-day limitation period was triggered when reasonable suspicion arose, no later than mid-March. The record indicates that Complainant requested weather leave for the first week of March 2020, which is when Management allegedly changed her leave status to annual leave instead. However, Complainant only learned of the change after the dates on her request passed and she saw that her annual leave had been depleted. Reasonable suspicion is further evinced by Complainant’s account that in mid-March, her union representative got involved, because she was unable to resolve the issue on her own. Also, an email from Management with instructions on granting pandemic-related leave caused Complainant to suspect discriminatory intent. On appeal, Complainant argues that the alleged discriminatory act in Claim A(3) is timely because it has been “ongoing” through July 2020, when she left the Agency. She references, but fails to provide email evidence from June and July 2020. For purposes of this complaint, we find Claim A(3) to be a discrete act limited to Management’s action changing her leave during the first week of March 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 lime limit, or for other reasons considered sufficient by the agency or Commission. On appeal, Complainant provides an array of explanations for her untimely contact with an EEO Counselor, and asks that we waive the requirement in this case. Initially, Complainant states that she was not aware of the 45-day limitation period to initiate contact with an EEO Counselor. However, the Commission has consistently held that a complainant who has engaged in prior EEO activity is deemed aware (has imputed knowledge) of the time frames required for filing complaints in EEO procedures. See Coffey v. Dep’t. of the Navy, EEOC Request No. 05901006 (Nov. 16, 1990), Kader v. United States Postal Serv., EEOC 3 Complainant’s formal complaint alleges that the allegation in Claim 2 occurred in 2009. The Agency’s decision noted that it was unclear whether Claim 2 should read 2019 instead of 2009, but Complainant offers no clarification on appeal. Regardless, both dates fall more than 45 days prior to the time frame Complainant was forced to leave duty status. 2021000592 4 Request No. 05980473 (Jun. 24, 1999). It is undisputed that Complainant previously initiated and filed multiple EEO complaints with the Agency, one of which was pending a hearing at the time she initiated the instant complaint. Regardless, Complaint argues that to her knowledge, an EEO claim could be raised within 180 calendar days from the date of the alleged discriminatory act, and “it is extended to 300 calendar days if the state agency enforces a law that prohibits employment discrimination on the same basis.” These assertions, unaccompanied by explanations or evidence, cannot overcome Complainant’s imputed knowledge from her prior EEO experience. We note that Complainant raises an insightful point when she recounts that in a prior harassment complaint, she was able to amend her complainant to include new claims about alleged discriminatory actions that occurred long before the date she initiated EEO contact. She is correct that we sometimes will accept claims that would otherwise be untimely, however, this is only within the context of a harassment allegation (discussed further below). The allegations in Claim A are all discrete acts. Complainant alternately argues that she delayed reporting Claims A(1) and B because she was “waiting for a Management response to the issues [she] raised,” and that she initiated EEO contact when she became aware (for reasons unspecified) that Management would not respond. We have consistently held that the utilization of agency procedures, union grievances, 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). Therefore, waiting for a response from Management does not justify waiving the 45 day limitation period. She also raises an alternate argument for waiving the 45 day limitation period for Claims A(2) and A(3). Specifically, the delay in EEO contact was because she was forced to leave duty status when her child’s school closed due to the pandemic (according to the record this was the first week of March 2020) and shortly afterward, the building where she worked closed also due to the pandemic. Yet, the record reflects that during the time frame to contact an EEO Counselor, Complainant was aware that the Agency was still operating, as she was actively contacting Management and her union representative to resolve the issue alleged in Claim A(3). As reasonable suspicion existed for both A(2) and A(3) and given Complainant’s prior EEO experience, we do not find an extension to be warranted in this case. Harassment With regard to the timeliness of a claim of harassment, because the incidents that make up a harassment claim collectively constitute one unlawful employment practice, the claim is actionable, as long as at least one incident that is part of the claim occurred within the filing period. Such a claim can include incidents that occurred outside the filing period that the complainant knew or should have known were actionable at the time of their occurrence. See Bulluck v. Dep’t. of Veterans Affairs, EEOC Appeal No. 0120114276 (Mar. 14, 2012); Richardson v. United States Postal Serv., EEOC Appeal No. 0120111122 (Feb. 1, 2012). 2021000592 5 However, the Supreme Court has held that no recovery is available for discrete acts such as hiring, firing, and promotions that fall outside the filing period, even if they are arguably related to other discriminatory acts that occur within the filing period. Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101 (2002), see also EEOC Compliance Manual 915.003, Section 2: “Threshold Issues,”(July 21, 2005). However, as the Court recognized, an employee may use the prior discrete acts as background evidence in support of a timely harassment claim. Although Claim B hints that Complainant experienced ongoing harassment by alleging that the harassment “began” on October 26, 2018, the record does not identify any other instances of harassment. On appeal, Complainant states that she has email evidence that she experienced ongoing harassment was ongoing, and occurred through the 45 day limitation period to contact an EEO counselor, yet offers no details or evidence. As the only identified instance of harassment occurred over two years before Complainant initiated EEO contact, Complainant’s claim of a hostile work environment/ harassment must be dismissed as untimely. We find that the Agency’s alternate grounds for dismissing Claim A(1) as a collateral attack under 29 C.F.R. § 1614.107(a)(1) was proper, but decline to provide further analysis, given that the entire complaint is untimely. 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 2021000592 6 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. 2021000592 7 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 11, 2021 Date Copy with citationCopy as parenthetical citation