[Redacted], Darla W., 1 Complainant,v.Janet L. Yellen, Secretary, Department of the Treasury, Agency.

Equal Employment Opportunity Commission

Jun 24, 2021

Appeal No. 2021001991 (E.E.O.C. Jun. 24, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Darla W.,1 Complainant, v. Janet L. Yellen, Secretary, Department of the Treasury, Agency. Appeal No. 2021001991 Agency No. IRS-20-0646-F DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's decision dated January 8, 2021, dismissing her 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 Management & Program Analyst, GS-343-14, at the Agency’s Program Controls & Integration facility in Lanham, MD. On November 18, 2020, Complainant filed a formal complaint alleging that the Agency subjected her to discrimination on the bases of race (African American) and reprisal for prior protected EEO activity when: 1. Complainant was bullied and harassed by her supervisors who belittled her performance in front of her coworkers, denied needed support, training, and guidance, gave her unrealistic deadlines and expectations, scolded her, ignored her concerns and requests, subjected her to intimidation/scare tactics, and isolated her from her team. 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. 2021001991 2 2. On March 27, 2020, Complainant was denied the opportunity to acknowledge her Performance Agreement. 3. On June 29, 2020, Complainant was given an unfavorable mid-year performance evaluation with many negative comments. 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 Complainant contacted an EEO counselor on August 26, 2020 and the alleged discriminatory events occurred at the latest on June 29, 2020, which was the day Complainant received a copy of her midyear evaluation. The instant appeal followed. On appeal, Complainant has submitted a timeline of the chronology of events giving more detail on the circumstances surrounding the claims. Complainant indicates that July 21, 2020, is the triggering date for timeliness because that was the date she was notified that her midyear evaluation was final and would not be modified. The Agency submitted a brief in response reiterating that Complainant’s contact with an EEO counselor was untimely. 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. We find that Complainant reasonably suspected discrimination upon receiving her official midyear evaluation on June 29, 2020, when she was provided with a final copy, which she refused to sign. We also note that prior to this date, Complainant had challenged and provided a rebuttal to her proposed midyear. The record shows that Complainant did not initially contact an EEO counselor until August 26, 2020, which is beyond the 45-day time limit. While it appears that Complainant continued beyond June 29 to try to get her final midyear evaluation changed, the Commission has consistently held that the utilization of agency procedures, union grievances, and other remedial processes in such circumstances 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). Here, Complainant does not claim that she was unaware of the forty-five-day rule. She also does not allege that any circumstances beyond her control prevented her from making timely counselor contact. As such, Complainant has not made an argument for waiver, estoppel, or equitable tolling of the timeline for making initial EEO counselor contact. CONCLUSION The agency's decision to dismiss the complaint was improper and is hereby AFFIRMED. 2021001991 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). 2021001991 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 June 24, 2021 Date