[Redacted], Emma B, 1 Complainant,v.Merrick B. Garland, Attorney General, Department of Justice (Federal Bureau of Investigation), Agency.

Equal Employment Opportunity Commission

Dec 15, 2021

Appeal No. 2021003930 (E.E.O.C. Dec. 15, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Emma B,1 Complainant, v. Merrick B. Garland, Attorney General, Department of Justice (Federal Bureau of Investigation), Agency. Appeal No. 2021003930 Hearing No. 570-2018-00403X Agency No. FBI-2017-00266 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's decision dated June 4, 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 Special Agent at the Agency’s Washington Field Office in Washington, District of Columbia. On July 14, 2017, Complainant filed a formal complaint alleging that the Agency subjected her to discrimination on the basis of sex (female) when from March 18, 2017 to present, she did not receive back pay for her 2010-2012 suspension.2 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 Although the accepted issue was back pay for Complainant’s 2014-2017 suspension, the parties agreed during the initial conference with the Administrative Judge that it is the 2010-2012 back pay at issue in this complaint. 2021003930 2 The Agency accepted the complaint and conducted an investigation. 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 April 8, 2019, the Agency filed a brief requesting that the AJ dismiss the complaint, among other reasons, for untimeliness because she did not contact an EEO Counselor within 45 days. Complainant filed a response opposing the Motion to Dismiss on April 18, 2019, asserting that her EEO Counselor contact was timely. On April 22, 2019, the Agency filed a reply in support of its original motion. Over Complainant's objections, the AJ assigned to the case granted the Agency’s April 8, 2019 Motion to Dismiss, finding that the Complainant failed to timely initiate contact with an EEO Counselor. The AJ also found that the Complainant’s claim was not covered by the Lilly Ledbetter Fair Pay Act. The Agency subsequently issued a final order adopting the AJ’s dismissal for untimely EEO counselor contact and finding that the provisions of the Lilly Ledbetter Fair Pay Act did not apply to Complainant’s claim for back pay in this case.3 The instant appeal followed. On appeal, Complainant contends she learned that the Agency did not pay her for the 2010-2012 suspension when she received her May 17, 2014 paycheck. Complainant states she received this paycheck sometime around May 25, 2017. However, she asserts she developed a reasonable suspicion that she would be denied back pay on April 5, 2017, when she was told to contact an Agency attorney. She contacted an EEO Counselor on May 15, 2017. Therefore, she states her EEO counselor contact occurred within 45 days of April 5, 2017 and was therefore timely. The Agency asserts the AJ properly dismissed the complainant for untimely EEO Counselor contact, stating Complainant had reasonable suspicion on February 1, 2017, when she suspected another employee had received back pay. However, the Agency contends there are four other independent reasons to affirm dismissal. First, the Commission dismissed Complainant’s prior, separate complaint in 2012 about the 2010-2012 suspension, and she cannot obtain the same relief she is requesting in the instant complaint. Second, the Complainant filed another, separate EEO complaint in 2014 in which she again sought the backpay from the 2010-2012 suspension. Third, the Complainant’s claim for the backpay associated with a suspension from 2010-2012 is barred by the applicable EEOC regulations on backpay which limits back pay to a period of two years prior to the date of filing of the EEO complaint and Complainant filed her EEO complaint in the instant case on July 14, 2017. Fourth, Complainant’s suspension from 2010-2012 was based on the suspension of her security clearance and EEOC precedents have held it does not have jurisdiction over the underlying security clearance decision. 3 Complainant’s attorney raised the issue of the applicability of the Lilly Ledbetter Fair Pay Act of 2009, Pub. L. No. 111-2, 123 Stat 5 (Lilly Ledbetter Fair Pay Act) in response to the Agency’s Motion to Dismiss. 2021003930 3 ANALYSIS AND FINDINGS EEOC Regulation 29 C.F.R. § 1614.105(a)(1) provides that an aggrieved person must initiate contact with an EEO 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. EEOC Regulation 29 C.F.R. § 1614.107(a)(2) provides for the dismissal of complaints where the complainant did not 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. 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 (February 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. Here, the record establishes that, on March 5, 2017, Complainant was restored to work, and, on March 18, 2017, the Agency issued Complainant her first paycheck after her reinstatement, which did not include the back pay at issue. However, the record shows Complainant first made EEO contact on May 15, 2017, almost two weeks after the 45-day time limit. We are not persuaded by Complainant’s argument that she developed a reasonable suspicion that she would be denied back pay on April 5, 2017, when she was told to contact an Agency attorney. Rather, we find that, given the extensive history of interaction between Complainant and the Agency and her belief that a male comparator had received back pay, she reasonably suspected discrimination when she received her paycheck that did not include the payment at issue, on March 18, 2017. Complainant has not presented any sufficient justification for extending or tolling the time limit. Thus, her EEO Counselor contact was untimely and her claim was properly dismissed.4 Although the complaint was dismissed for multiple reasons, because we find the dismissal was proper for this reason, we will not consider any alternative reasons. CONCLUSION For the foregoing reasons, 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: 4 We agree with the AJ that the Lilly Ledbetter Fair Pay Act is not applicable to Complainant’s complaint, as Complainant does not allege an ongoing compensation issue as contemplated by that regulation. 2021003930 4 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). 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. 2021003930 5 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 December 15, 2021 Date