[Redacted], Dominica V., 1 Complainant,v.Merrick B. Garland, Attorney General, Department of Justice (U.S. Marshals Service), Agency.

Equal Employment Opportunity Commission

Feb 2, 2022

Appeal No. 2022000319 (E.E.O.C. Feb. 2, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Dominica V.,1 Complainant, v. Merrick B. Garland, Attorney General, Department of Justice (U.S. Marshals Service), Agency. Appeal No. 2022000319 Agency No. USM-2021-001176 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's final decision dated September 27, 2021, dismissing a formal 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 During the period at issue, Complainant worked as a Chief Deputy US Marshal, GS-15, at the Agency’s Investigative Operations Division in Birmingham, Alabama. On March 16, 2021, Complainant initiated EEO Counselor contact. Informal efforts to resolve her concerns were unsuccessful. On April 25, 2021, Complainant filed a formal complaint claiming that the Agency subjected her to a hostile work environment based on sex and in reprisal for prior protected EEO activity when: 1. On November 6, 2020, Complainant received a lowered rating on one element of her FY 2020 interim performance evaluation. 2. On March 28, 2021, in response to Complainant’s Freedom of Information Act 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. 2022000319 2 (FOIA) request, she received the investigative report from an internal investigation filed against her in August 2018. Complainant alleges this report show how various Agency employees defamed her character by making false statements about her personal life, character, and professionalism. On September 27, 2021, the Agency issued a final decision. The Agency dismissed the formal complaint on two procedural grounds. First, the Agency dismissed the formal complaint for untimely EEO Counselor contact, pursuant to 29 C.F.R. § 1614.107(a)(2). The Agency found that Complainant should have reasonably suspected discrimination, with respect to claim 1, as early as July 2019 when she said she allegedly heard the same rating official indicated that he used performance ratings to manipulate a female employee’s performance. Regarding claim 2, the Agency determined that Complainant should have reasonably suspected the alleged defamation when, in March 2020, she received a redacted internal investigative report which revealed that the alleged false statements had been made about Complainant. The Agency found that Complainant’s initial EEO Counselor contact was on March 16, 2021, which it found to beyond the regulatory 45-day limitation period. Second, the Agency dismissed the formal complaint, pursuant to 29 C.F.R. § 1614.107(a)(1), for failure to state a claim finding that Complainant was not aggrieved. Specifically, the Agency determined that claim 1 involved an interim, and not final, rating and therefore, did not constitute an adverse action. Regarding claim 2, the Agency determined that the alleged discriminatory comments were made during an internal investigation and were not a recognizable claim in the EEO process. The instant appeal followed. ANALYSIS AND FINDINGS EEOC Regulation 29 C.F.R. § 1614.105(a)(1) requires that complaints of discrimination should be brought to the attention of the Equal Employment Opportunity Counselor within forty-five (45) days of the date of the matter alleged to be discriminatory or, in the case of personnel action, within forty-five (45) days of the effective date of the action. Claim 1 - Interim Rating Our review of the EEO Counselor’s report reflects that Complainant initiated EEO Counselor contact on March 16, 2021, more than 45 days from when the Agency issued Complainant her interim FY 2020 performance rating on November 6, 2020. For this reason, the Agency dismissed claim 1 as untimely raised. The Commission has adopted a “reasonable suspicion” standard to determine when the forty-five (45) day limitation period is triggered. See Howard v. Dep’t of the Navy, EEOC Request No. 05970852 (Feb. 11, 1999). 2022000319 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. Here, Complainant has asserted that she received the interim evaluation on November 6, 2020, and she made several attempts to schedule a meeting with management, which did not occur until March 9, 2021. Complainant asserts she had no reason to suspect discrimination regarding her interim evaluation until after she heard the rating official’s rationale for her rating during the March 2021 meeting. We disagree. The record shows that Complainant acknowledged in the EEO Counselor’s report that she was aware since July 2019 that the same rating official had “mentioned using performance ratings to manipulate a female employee’s performance.” Consequently, Complainant had reasonable suspicion of discriminatory evaluation practices based on sex by the same rating official as early as July 2019, so much so that Complainant questioned her interim rating and requested a meeting with the rating official in the same month that she received her rating. Complainant had 45 days from the day she received her rating, or until December 21, 2020, to timely initiate EEO Counselor contact, but she failed to do so. Therefore, the Agency properly dismissed this claim, pursuant to 29 C.F.R. § 1614.107(a)(2), for untimely EEO Counselor contact. Claim 2 - Investigative Report By her own admission, Complainant stated in her formal complaint that she received a redacted copy of the investigation report in March 2020, that contained false information about her. Thereafter, the record reflects that Complainant submitted a FOIA request on October 4, 2020 to receive a copy of the full investigative report which she subsequently received on March 28, 2021. Complainant had reasonable suspicion that her employees had made false statements about her when she received the redacted report in October 2020. Under the “reasonable suspicion” standard, the time limit was triggered when Complainant alleged that false statements were made against her when she received the October 2020 redacted investigative report, and not when Complainant learned of supporting evidence of discrimination (i.e. the March 28, 2021 results of the FOIA request containing all documents and records related to the Agency’s internal investigation which Complainant claimed contained fabrications). Therefore, we affirm the Agency’s dismiss of claim 2, pursuant to 29 C.F.R. § 1614.107(a)(2), for untimely EEO Counselor contact. Because we affirm the Agency’s dismissal for untimely EEO Counselor contact, we need not address the Agency’s alternative grounds for dismissal. CONCLUSION The Agency’s final decision dismissing the formal complaint for the reasons discussed above is AFFIRMED. 2022000319 4 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). 2022000319 5 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 2, 2022 Date