[Redacted], Darell B., 1 Complainant,v.Denis R. McDonough, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity Commission

Nov 22, 2021

Appeal No. 2021004427 (E.E.O.C. Nov. 22, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Darell B.,1 Complainant, v. Denis R. McDonough, Secretary, Department of Veterans Affairs, Agency. Appeal No. 2021004427 Agency No. 20DR-00062021102415 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's final decision dated July 27, 2021, 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., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. BACKGROUND During the period at issue, Complainant worked as a Supervisory Records Manager, Grade GS- 13, at the Office of Administration within the Agency’s Central Office at Washington, District of Columbia. On February 25, 2021, Complainant initiated EEO Counselor contact. Informal efforts to resolve his concerns were unsuccessful. On May 31, 2021, Complainant filed a formal complaint, claiming that the Agency subjected him to discrimination based on race, sex, and age when: 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. 2 2021004427 1. on February 2, 2021, Complainant’s supervisor, Chief, Administrative Services, emailed Complainant a final signed copy of his FY2020 performance appraisal with an “Excellent” rating instead of an “Outstanding” as Complainant had expected; and 2. on February 18, 2021, Complainant learned that his supervisor was not going to discuss or give him a copy of the “Fact-Finding” results which named him as an alleged harasser. On July 27, 2021, the Agency issued a final decision dismissing both claims. The Agency dismissed Claim 1 for untimely EEO Counselor contact, pursuant to 29 C.F.R. § 1614.107(a)(2). Specifically, the Agency determined Complainant had signed the performance appraisal with the “Excellent” rating on November 12, 2020, but did not contact an EEO counselor about the matter until February 25, 2021. The Agency dismissed Claim 2 for failure to state a claim under 29 C.F.R. §1614.107(a)(1). The instant appeal followed. Regarding Claim 1, Complainant contended that his counselor contact was timely because the action that prompted him to believe that he had been subjected to discrimination was email correspondence with his supervisor that occurred in early February 2021 regarding his final performance assessment for Fiscal Year 2020 (FY2020). According to Complainant, it was not until those emails that Complainant learned that management had instructed his supervisor that Complainant could only be rated “excellent” rather than “outstanding” because it was Complainant’s first performance appraisal in that position. Next, Complainant argues that in Claim 2 he had sufficiently stated a claim of ongoing harassment in that his supervisor had continuously refused to provide specific information about Agency fact- finding inquiries involving Complainant or employees that he has supervised. ANALYSIS AND FINDINGS Claim 1 EEOC Regulation 29 C.F.R. 1614.107(a)(2) mandates that a discrimination complaint that fails to comply with the applicable time limits shall be dismissed. 29 C.F.R. § 1614.105(a)(1) requires that claims of discrimination should be brought to the attention of an EEO Counselor within 45 calendar days of the date of the matter alleged to be discriminatory or within 45 calendar days of the effective date a personnel action. Time limits shall be extended if a complainant was not notified of the time limits, was unaware of them, or reasonably did not know that the discrimination occurred, or that, despite due diligence, circumstances beyond a complainant’s control prevented timely EEO Counselor contact, or for other reasons considered sufficient by the Agency or EEOC. Regarding Claim 1, the Commission applied our “reasonable suspicion” standard (as opposed to a “supportive facts” standard) to determine when the 45-day limitation period triggered. Howard v. Dep’t of the Navy, EEOC Request No. 05970852 (Feb. 11, 1999). 3 2021004427 The Agency made Complainant aware he was rated “excellent” when he signed the FY2020 performance assessment on November 12, 2020. Furthermore, November 12, 2020, marked the effective date of the FY2020 performance assessment as a personnel action. Although, it was not until February 2021, that Complainant claims to have learned management’s reasoning for rating him excellent instead of outstanding, these circumstances are insufficient to extend the time limit for EEO Counselor contact. Complainant has not sufficiently established why he did not reasonably suspect discrimination until this date. Therefore, the Agency properly dismissed Claim 1 in accordance with 29 C.F.R. 1614.107(a)(2). Claim 2 EEOC Regulation 29 C.F.R. § 1614.107(a)(1) provides the Agency shall dismiss a complaint that fails to state a claim. Under the Commission regulations at 29 C.F.R. §§ 1614.103, 1614.106(a), the Agency must accept a justiciable claim that an aggrieved employee has been subjected to discrimination based on EEO-protected characteristics or because of EEO-protected activities. Regarding Claim 2, we concur with the Agency, in that, instead of stating a justiciable claim of discrimination, Complainant has collaterally attacked the Agency’s decision to refer his requests for personnel information to another process through the Freedom of Information Act (FOIA). Our jurisdiction does not extend to matters concerning FOIA or the Privacy Act and Complainant cannot use the EEO complaint process to launch a collateral attack on decisions made in this other adjudicatory process. Wills v. Dep’t of Def., EEOC Request No. 05970596 (July 30, 1998). Therefore, Agency properly dismissed that Claim 2 for failure to state a claim under 29 C.F.R. §1614.107(a)(1). CONCLUSION Accordingly, the Agency's final decision dismissing the formal 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. 4 2021004427 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. 29 C.F.R. § 1614.405; EEO Management Directive for 29 C.F.R. Part 1614 at Ch. 9 § VII.B (Aug. 5, 2015). Complainant should submit his 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 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 St. 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. 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). 29 C.F.R. § 1614.403(g). Either party’s request or statement or brief in opposition must also include proof of service on the other party, unless Complainant files his 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. 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. 5 2021004427 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 November 22, 2021 Date