U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Ellan C.,1 Complainant, v. Alejandro N. Mayorkas, Secretary, Department of Homeland Security (Federal Law Enforcement Training Center), Agency. Appeal No. 2020003085 Hearing No. 520-2019-00503X Agency No. HS-HQ-019982017 DECISION JURISDICTION On April 9, 2020, Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s March 4, 2020 final order concerning her equal employment opportunity (EEO) complaint alleging 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. For the following reasons, the Commission VACATES the Agency’s final order. BACKGROUND At the time of events giving rise to this complaint, was a student of the Agency’s Uniformed Police Training Program (UPTP) at the Federal Law Enforcement Training Center (FLETC) located in Glynco, Georgia. She was also employed as a Law Enforcement Specialist, GS-1801- 5, at the Agency’s National Protection and Program Directorate (NPPD). The EEO Counselor’s report indicates that Complainant contacted the EEO Counselor on March 21, 2017. 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. 2020003085 2 Report of Investigation (ROI) at 16. The Counselor’s report also notes that Complainant stated that she tried to contact the DHS’s EEO Office by phone on March 23, 24, and 27, 2017. Subsequently, on April 5, 2017, Complainant contacted the EEO Office for the Agency’s FLETC. Id. at 17. On September 7, 2017, Complainant filed a formal complaint alleging that the Agency subjected her to discrimination on the basis of sex (female) when: 1. She was expelled from the Physical Security Training Program (PSTP) class at FLETC on January 31, 2017; and 2. Her employment as a Law Enforcement Specialist was terminated on February 8, 2017. 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 January 6, 2020, the Agency filed a Motion to Dismiss the complaint for untimely EEO Counselor contact. On January 13, 2020, the parties appeared before the AJ by telephone for a pre-hearing conference. In a post-conference order issued on January 13, 2020, the AJ granted Complainant until January 31, 2020, to respond to the Agency’s Motion. Complainant timely filed an Opposition to the Agency’s Motion to Dismiss. The AJ found that the alleged discriminatory acts took place on January 31, 2017, the date of Complainant’s expulsion from FLETC; and February 8, 2017, the date of Complainant’s removal from the FPS. According to the AJ, as required by 29 C.F.R. § 1614.105(a)(1), Complainant had until March 25, 2017 to contact an EEO counselor. Noting that March 25, 2017, fell on a Saturday, the AJ observed that even if the time limit was extended to the next business day (Monday, March 27, 2017), Complainant’s April 5, 2017 was still untimely. Complainant, reasoned the AJ, was informed of the 45-day time limit in her Welcome Packet, handbook, and termination letter. As for Complainant’s argument that her contact with another office was timely, the AJ stated the argument was misplaced. The AJ reasoned that where a complainant is provided clear procedural instructions regarding how and when to contact the Agency’s EEO office, a failure to follow such instructions renders attempted contact insufficient. On March 4, 2021, the Agency issued its Final Action fully implementing the AJ’s decision, procedurally dismissing the complaint pursuant to 29 C.F.R § 1614.110(a). 2020003085 3 CONTENTIONS ON APPEAL On appeal, Complainant requests that the Agency’s Final Decision implementing the AJ’s decision dismissing her complaint be reversed because she timely initiated EEO contact within 45 days. Complainant argues that she timely initiated EEO counselor contact when she contacted the Office of Civil Rights and Civil Liberties, Equal Employment Opportunity and Diversity Division on March 21, 2017, after obtaining the phone number from the Agency’s website. As noted above, Complainant asserts she made additional calls and left voicemails on March 23, 24, and 27, 2017. On an unspecified date, Complainant explains that she was contacted by the Agency’s EEO office and directed to contact the FPS Complaints Manager. She did so on April 5, 2017, and was directed to the FLETC EEO office. In its Appeal Brief, the Agency requests that we affirm the dismissal of Complainant’s complaint because Complainant failed to contact an EEO counselor within 45 days of either her expulsion or her termination. With respect to claim (1), the Agency argues that Complainant should have contacted the EEO Counselor by March 17, 2017, forty-five days after the January 31, 2017 expulsion. Additionally, the Agency reiterates its belief that Complainant’s March 21, 2017 phone call was insufficient to constitute EEO contact, with regard to either claim, because she had been previously given contact information for the correct Agency EEO office. STANDARD OF REVIEW In rendering this appellate decision, we must scrutinize the AJ’s legal and factual conclusions, and the Agency’s final order adopting them, de novo. See 29 C.F.R. § 1614.405(a) (stating that a “decision on an appeal from an Agency’s final action shall be based on a de novo review . . .”); see also Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9, § VI.B. (Aug. 5, 2015) (providing that an administrative judge’s determination to issue a decision without a hearing, and the decision itself, will both be reviewed de novo). This essentially means that we should look at this case with fresh eyes. In other words, we are free to accept (if accurate) or reject (if erroneous) the AJ’s, and Agency’s, factual conclusions and legal analysis - including on the ultimate fact of whether intentional discrimination occurred, and on the legal issue of whether any federal employment discrimination statute was violated. See id. at Chapter 9, § VI.A. (explaining that the de novo standard of review “requires that the Commission examine the record without regard to the factual and legal determinations of the previous decision maker,” and that EEOC “review the documents, statements, and testimony of record, including any timely and relevant submissions of the parties, and . . . issue its decision based on the Commission’s own assessment of the record and its interpretation of the law”). 2020003085 4 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 indicates that Complainant was informed of the 45-day time limit, as Complainant herself acknowledges receiving the information at her orientation. Further, we find that Complainant initiated contact on March 21, 2017, when she called the phone number provided by the Agency’s website for the Office of Civil Rights and Civil Liberties. Both the EEO Counselor’s Report and the “Headquarters/FPS EEO Intake Form” identify March 21, 2017 as the date of initial contact. As for the Agency’s contention on appeal that this contact was insufficient and Complainant was required to contact the FLECTC EEO office, we disagree. We have consistently held that “a complainant may satisfy the criterion of Counselor contact by initiating [contact with] an agency official logically connected with the EEO process, even if that official is not an EEO Counselor.” Floyd v. National Guard Bureau, EEOC Request No. 05890086 (June 22, 1989). Here, by contacting the Agency’s Office of Civil Rights and Civil Liberties, instead of a local, particular EEO office, we find that Complainant met her obligation in initiating the EEO process. Therefore, we find that Complainant’s contact regarding her February 8, 2017 termination was timely. As for the January 31, 2017 expulsion, Complainant argues on appeal that, because the notification included an appeal process,2 she believed it to be merely a proposed action. However, the Commission has consistently held that neither internal appeals nor informal efforts to challenge an agency's adverse action, nor the filing of a grievance do not toll the running of the time limit to contact an EEO Counselor. See Hosford v. Department of Veterans Affairs, EEOC Request No. 05890038 (June 9, 1989); Miller v. United States Postal Service, EEOC Request No. 05880835 (February 2, 1989). 2 The notice stated: “As outlined in the FLETC Directive/Manual . . . you may appeal my decision to the Assistant Director. . ..” within ten days.” 2020003085 5 As a result, Complainant’s contact regarding the expulsion was untimely. However, as the expulsion was relied upon by the Agency in issuing her termination, the claim shall be considered as background information. CONCLUSION Therefore, after a careful review of the record, including Complainant's arguments on appeal, the Agency's response, and arguments and evidence not specifically discussed in this decision, the Commission VACATES the Agency's final action and remands the matter to the Agency in accordance with this decision and the Order below. ORDER The Agency is directed to submit a copy of the complaint file to the EEOC’s New York District Office Hearings Unit within fifteen (15) calendar days of the date this decision becomes final. The Agency shall provide written notification to the Compliance Officer at the address set forth below that the complaint file has been transmitted to the Hearings Unit. Thereafter, the Administrative Judge shall hold a hearing and issue a decision on the complaint in accordance with 29 C.F.R. § 1614.109 and the Agency shall issue a final action in accordance with 29 C.F.R. § 1614.110. IMPLEMENTATION OF THE COMMISSION’S DECISION (K0719) Under 29 C.F.R. § 1614.405(c) and § 1614.502, compliance with the Commission’s corrective action is mandatory. Within seven (7) calendar days of the completion of each ordered corrective action, the Agency shall submit via the Federal Sector EEO Portal (FedSEP) supporting documents in the digital format required by the Commission, referencing the compliance docket number under which compliance was being monitored. Once all compliance is complete, the Agency shall submit via FedSEP a final compliance report in the digital format required by the Commission. See 29 C.F.R. § 1614.403(g). The Agency’s final report must contain supporting documentation when previously not uploaded, and the Agency must send a copy of all submissions to the Complainant and his/her representative. If the Agency does not comply with the Commission’s order, the Complainant may petition the Commission for enforcement of the order. 29 C.F.R. § 1614.503(a). The Complainant also has the right to file a civil action to enforce compliance with the Commission’s order prior to or following an administrative petition for enforcement. See 29 C.F.R. §§ 1614.407, 1614.408, and 29 C.F.R. § 1614.503(g). Alternatively, the Complainant has the right to file a civil action on the underlying complaint in accordance with the paragraph below entitled “Right to File a Civil Action.” 29 C.F.R. §§ 1614.407 and 1614.408. A civil action for enforcement or a civil action on the underlying complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c) (1994 & Supp. IV 1999). If the Complainant files a civil action, the administrative processing of the complaint, including any petition for enforcement, will be terminated. See 29 C.F.R. § 1614.409. 2020003085 6 Failure by an agency to either file a compliance report or implement any of the orders set forth in this decision, without good cause shown, may result in the referral of this matter to the Office of Special Counsel pursuant to 29 C.F.R. § 1614.503(f) for enforcement by that agency. 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. 2020003085 7 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 (R0610) This is a decision requiring the Agency to continue its administrative processing of your complaint. However, if you wish to file a civil action, you have the right to file such action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision. In the alternative, you may file a civil action after one hundred and eighty (180) calendar days of the date you filed your complaint with the Agency, or filed your appeal with the Commission. 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. 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 August 19, 2021 Date
