[Redacted], Dudley H, 1 Complainant,v.Jelena McWilliams, Chairman, Federal Deposit Insurance Corporation, Agency.

Equal Employment Opportunity Commission

May 25, 2021

Appeal No. 2021001397 (E.E.O.C. May. 25, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Dudley H,1 Complainant, v. Jelena McWilliams, Chairman, Federal Deposit Insurance Corporation, Agency. Appeal No. 2021001397 Agency No. FDICEO-20-044 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's decision dated November 19, 2020, dismissing his 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 Senior Complex Financial Institution Analyst, CG-15, at the Agency’s New York Region, Division of Complex Institution Resolution and Supervision (CIRS), facility in New York, New York. On September 17, 2020, Complainant filed a formal complaint alleging that the Agency subjected him to discrimination and a hostile work environment/harassment on the basis of race (Black) when: a. In 2014, Complainant was not allowed to teach a class; b. In May 2016, another employee was given credit for an idea that Complainant had; c. In June 2016, Complainant was recommended for a Special Thanks and Recognition (STAR) Award due to two outstanding workplace accomplishments, 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. 2021001397 2 but his supervisor (Supervisor) denied the award; d. On June 21, 2017, Supervisor told Complainant that he used excess credit hours; e. In late 2017, Supervisor denied Complainant’s request to take certain classes that interested him; f. In March/April 2018, Supervisor delayed approving a training request that Complainant submitted until after the deadline for Complainant to enroll in the class; g. In October 2018, Supervisor did not give approval for Complainant to enroll in a business writing class that interested him; h. In November 2019, Complainant challenged a bank’s management about an error in their reports and explanation and, instead of praising Complainant, Supervisor asked Complainant why he did not identify the error sooner; i. On December 30, 2019, Complainant informed Supervisor about errors in some report numbers, and Supervisor got angry and snatched a pen from Complainant’s hand; j. In December 2019, Supervisor criticized Complainant for allegedly failing to delete a Dropbox file as required, saying to Complainant, “even a 9th grader can even do this work” and Complainant was subsequently informed that properly deleted files can sometimes reappear in Dropbox; k. From January 6 to 17, 2020, Supervisor denied credit hours and required Complainant to work on his own time to prepare to teach an FDIC class; and l. On January 24, 2020, Supervisor notified Complainant that he had not produced weekly bullets as required. Following the submission of the complaint, the Agency emailed Complainant to as why Complainant waited until July 9, 2020 to contact an EEO Counselor about the alleged events. On September 25, 2020, Complainant’s attorney replied, noting that Supervisor sent Complainant harassing emails until the end of April 2020, but Complainant did not recognize these emails s harassing until late May 2020. The Agency dismissed the complaint, pursuant to 29 C.F.R. §1614.107(a)(2), for untimely EEO Counselor contact. The instant appeal followed. On appeal, Complainant argues that the Agency misapplied the law and relevant facts were disregarded that establish that Complainant was unaware of the discriminatory harassment at the time it occurred and that he had a valid medical incapacity. In response, the Agency argues that its final decision should be upheld because Complainant failed to provide evidence that he was unaware of the deadline to contact an EEO Counselor and failed to provide a reasonable and adequate justification for the untimely contact. 2021001397 3 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 a personnel action, within forty-five (45) days of the effective date of the action. The Commission has adopted a “reasonable suspicion” standard (as opposed to a “supportive facts” 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). 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. EEOC Regulation 29 C.F.R. § 1614.107(a)(2) provides, in pertinent part, that an agency shall dismiss an entire complaint that fails to comply with the applicable time limits in 29 C.F.R. § 1614.105. However, the time limitation is subject to waiver, estoppel and equitable tolling pursuant to 29 C.F.R. § 1614.604(c). The Commission has held that time limits shall be extended when the individual shows that he was not notified of the time limits and was not otherwise aware of them, that he did not know and reasonably should not have known that the discriminatory matter or personnel action occurred, that despite due diligence he was prevented by circumstances beyond his control from contacting the Counselor within the time limits, or for other reasons considered sufficient by the agency or the Commission. Ellis v. United States Postal Service, EEOC Request No. 01992093 (Nov. 29, 2000). Here, the record shows that Complainant initially contacted an EEO Counselor on July 9, 2020, which is more than 45 days past the alleged events in the formal complaint, which occurred between 2014 and January 24, 2020. Even considering Complainant’s explanation that Supervisor continued to send him harassing emails until the end of April 2020, these alleged events still occurred outside of the 45-day period. We recognize that Complainant asserts that he was unaware of the harassing nature of Supervisor’s actions until late May 2020 because, due to the confusing nature of the tasks, he needed two weeks to research and realize that files were reposted. However, in determining when the limitation period is triggered, the focus is on the time of the alleged discriminatory act, not the time when the consequences of the act become most painful. Delaware State College v. Ricks, 449 U.S. 250, 258 (1980). Thus, we find Complainant reasonably suspected discrimination upon receipt of the allegedly harassing correspondence, which, according to Complainant, was received “until the end of April 2020.” Alternatively, Complainant argues that the time limit should be extended due to the deterioration in his mental health as a consequence of the alleged harassment, which was further exacerbated by the covid-19 epidemic. Complainant asserts that he was so mentally incapacitated that he was unable to focus on initiating the instant EEO complaint until after he began receiving psychological counseling in June 2020. We have consistently held, in cases involving physical or mental health difficulties, that an extension is warranted only where an individual establishes that he was unable to meet the regulatory time limits. See Davis v. U.S. Postal Serv. EEOC Request 05980475 (Aug 6, 1998); Crear v. U.S. Postal Serv., EEOC Request No. 05920700 (Oct. 2021001397 4 29, 1992). Here, we find Complainant has failed to establish that he was so incapacitated as to render him unable to timely file his appeal. Therefore, we find that Complainant has failed to provide sufficient justification for extending or tolling the limitation period. 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 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. 2021001397 5 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. 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 May 25, 2021 Date