[Redacted], Crystal D., 1 Complainant,v.Pete Buttigieg, Secretary, Department of Transportation, Agency.

Equal Employment Opportunity Commission

Jul 6, 2021

Appeal No. 2021001509 (E.E.O.C. Jul. 6, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Crystal D.,1 Complainant, v. Pete Buttigieg, Secretary, Department of Transportation, Agency. Appeal No. 2021001509 Agency No. 2020-28962-OST-02 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's decision dated December 10, 2020, dismissing her complaint alleging 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 Policy Analyst, GS- 14, at the Agency’s Office of the Secretary in Washington, D.C. On January 5, 2021, Complainant filed a formal complaint alleging that the Agency subjected her to unlawful retaliation for prior protected EEO activity (Agency No. 2020-28766-OST-02), when, on July 24, 2020, she received a performance rating of “achieved results” for the performance year June 1, 2019 to May 31, 2020. The Agency dismissed the complaint, pursuant to 29 C.F.R. § 1614.107(a)(2), for untimely EEO counselor contact. In its dismissal the Agency found that alleged discriminatory event occurred at the latest on June 24, 2020, but Complainant did not contact an EEO counselor until September 11, 2020, which was three days beyond the 45-day limitation period proscribed by 29 C.F.R. §1614.105(a)(1). 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. 2021001509 2 The instant appeal followed. On appeal, Complainant contends that there is a nexus or theme between her instant complaint and prior EEO claim pending with the Agency (Agency No. 2020- 28766-OST-02). She asserts her contact with an EEO counselor was timely in the pending claim. ANALYSIS AND FINDINGS EEOC Regulation 29 C.F.R. § 1614.105(a)(1) requires that complaints of discrimination 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 a personnel action, within 45 days of the effective date of the action. Here, Complainant does not dispute the Agency’s representations that she received her performance rating on June 24, 2020, at the latest, and first contacted an EEO counselor about the matter on September 11, 2020, beyond the 45-day limitation period. Complainant noted in her complaint that she was delayed because she was seeking to appeal her performance rating to higher-level management officials. However, Complainant’s reliance on management to resolve her claims does not excuse her untimely EEO counselor contact. The Commission has 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 Service, EEOC Appeal No. 01992093 (November 29, 2000). On appeal, Complainant asserts that her complaint should not be dismissed because there is a common nexus or theme between it and her earlier EEO complaint (Agency No. 2020-28766- OST-02) pending with the Agency. This, however, is irrelevant to her responsibility to seek EEO counseling on the matter raised in her instant complaint in a timely manner. She also contends that her first-line supervisor purposely downgrading her performance appraisal is ultimately a continuing pay violation since it affects her “annual bonuses” and “within-grade increases.” We note that the Lilly Ledbetter Fair Pay Act of 2009 does provide that a series of payments of discriminatory wages may constitute a continuing violation that restarts the period for seeking EEO counseling each time a payment is made. That, however, is not the case here and the Ledbetter Act does not apply. Complainant’s receipt of an allegedly retaliatory performance rating is a discrete personnel action that triggered the 45-day limitation period. Complainant’s assertions concerning its connection to pay issues is purely speculative and has not yet occurred. CONCLUSION Based on a thorough review of the record and the contentions on appeal, the Agency’s dismissal of Complainant’s complaint is AFFIRMED. 2021001509 3 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. 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). 2021001509 4 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 July 6, 2021 Date