[Redacted], Ebony M., 1 Complainant,v.Thomas W. Harker, Acting Secretary, Department of the Navy, Agency.

Equal Employment Opportunity Commission

Jul 15, 2021

Appeal No. 2019005822 (E.E.O.C. Jul. 15, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Ebony M.,1 Complainant, v. Thomas W. Harker, Acting Secretary, Department of the Navy, Agency. Appeal No. 2019005822 Agency No. DON-18-62470-01168 DECISION On September 5, 2019, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Equal Employment Opportunity Commission Administrative Judge’s (AJ) July 19, 2019,2 decision 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. Upon review, the Commission AFFIRMS the AJ’s decision. ISSUE PRESENTED The issue presented is whether the AJ appropriately dismissed Complainant’s complaint for untimely EEO Counselor contact. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Financial Management Analyst at the Agency’s Naval Facilities Engineering Command Atlantic facility in Norfolk, Virginia. 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 After 40 days without an Agency final action, the AJ's decision became the Agency's final action pursuant to 29 C.F.R. 1614.110. 2019005822 2 On August 17, 2018, Complainant initiated EEO Counselor contact. On September 17, 2018, Complainant filed a formal complaint alleging that the Agency subjected her to discrimination on the basis of sex (female) when the Agency failed to take timely and appropriate action against her coworker who, on May 24, 2018, exposed his penis to her at work and made sexually harassing comments. At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of her right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). Complainant timely requested a hearing. On June 28, 2019, the Agency filed a Motion to Dismiss for Untimeliness (Motion). Complainant timely responded to the Agency’s Motion. The Agency replied with a counter brief. On July 19, 2019, the AJ issued the Order Granting Agency’s Motion to Dismiss Complaint as Untimely. The AJ determined that Complainant had reasonable suspicion that she was experiencing discriminatory harassment on May 24, 2018 but chose not to contact an EEO Counselor until August 17, 2018. The AJ determined that this was beyond the 45-day time frame limitation and that Complainant had failed to provide a justifiable reason to toll the time frame. Accordingly, the AJ dismissed the complaint for failure to timely initiate EEO Counselor contact pursuant to 29 C.F.R. § 1614.107(a)(1). The Agency did not issue a final order in this matter. Consequently, by operation of our regulations, the Administrative Judge's July 19, 2019, decision became the Agency's final order forty days after its receipt. See 29 C.F.R. § 1614.109(i). CONTENTIONS ON APPEAL On appeal, Complainant asserts that that she was deceived by the Agency into believing that it was taking effective remedial action. Complainant asserts that it was only after the Agency failed to take timely and effective remedial action that she felt prompted to contact an EEO Counselor. Complainant argues that the AJ, therefore, incorrectly determined that the date to start the 45-day time frame was on the date of sexual harassment. Instead, Complainant asserts that it should have been the date of when Complainant believed the Agency was not fulfilling its duty. Additionally, Complainant argues that the AJ should have waited for Complainant to finish the discovery process before issuing a decision to dismiss her case. Overall, Complainant argues that her EEO Counselor contact was timely and that her complaint should not have been dismissed. In response, the Agency provides a detailed brief asserting that the AJ appropriately analyzed the issue of timeliness. The Agency asserts that the AJ correctly determined that Complainant failed to timely initiate EEO Counselor contact. The Agency asserts that the arguments provided by Complainant, below and on appeal, do not justify tolling the time frame limitation and requests that her appeal be denied. 2019005822 3 ANALYSIS AND FINDINGS EEOC Regulation 29 C.F.R. §1614.107(a)(2) states that the Agency shall dismiss a complaint or a portion of a complaint that fails to comply with the applicable time limits contained in §1614.105, §1614.106 and §1614.204(c), unless the Agency extends the time limits in accordance with §1614.604(c). EEOC Regulation 29 C.F.R. §1614.105(a)(1) provides that an aggrieved person must initiate contact with an EEO 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. EEOC Regulation 29 C.F.R. §1614.105(a)(2) allows the Agency or the Commission to extend the time limit if Complainant can establish that Complainant was not aware of the time limit, that Complainant did not know and reasonably should not have known that the discriminatory matter or personnel action occurred, that despite due diligence complainant was prevented by circumstances beyond her control from contacting the EEO Counselor within the time limit, or for other reasons considered sufficient by the Agency or Commission. The record discloses that the alleged discriminatory event occurred on May 24, 2018, but Complainant did not initiate contact with an EEO Counselor until August 17, 2018, which is well beyond the forty-five (45) day limitation period. On appeal, Complainant explains that she waited to contact an EEO counselor until after the Agency’s internal procedures failed to remedy the situation to her satisfaction. 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. U.S. Postal Serv., EEOC Appeal No. 01992093 (Nov. 29, 2000). Therefore, we are not persuaded to waive the limitation period on either of these grounds. CONCLUSION Accordingly, the AJ’s decision dismissing Complainant's complaint for untimely EEO Counselor contact 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. 2019005822 4 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). 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. 2019005822 5 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 15, 2021 Date