[Redacted], Filiberto H., 1 Complainant,v.Christine Wormuth, Secretary, Department of the Army, Agency.

Equal Employment Opportunity Commission

Dec 9, 2021

Appeal No. 2021003864 (E.E.O.C. Dec. 9, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Filiberto H.,1 Complainant, v. Christine Wormuth, Secretary, Department of the Army, Agency. Appeal No. 2021003864 Agency No. ARRRAD21JAN00880 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's decision dated June 2, 2021, dismissing his complaint allegin 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 held a temporary promotion as a Supply Technician, GS-07, at the Agency’s Red River Army Depot in Texarkana, Texas. Effective July 24, 2020, management returned Complainant to his prior position and did not permanently promote him in the Supply Technician position. On February 12, 2021, Complainant initiated EEO contact alleging that the Agency subjected him to discrimination on the bases of race (African-American), sex (male), and reprisal for prior protected EEO activity (May 14, 2020 complaint) when it failed to convert him to a permanent Supply Technician, GS-07, position. Complainant stated that he learned of the disparate treatment on December 30, 2020, when management permanently converted two similarly- situated coworkers who are outside of his protected classes. Subsequently, on May 20, 2021, Complainant filed a formal complaint reiterating his claim. 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. 2021003864 2 In its June 2, 2021 final decision, the Agency dismissed Complainant’s complaint pursuant to 29 C.F.R. § 1614.107(a)(2). The Agency stated that Complainant initiated EEO contact in an untimely manner. The Agency explained that Complainant was returned to his prior position without promotion effective July 24, 2020, but he did not initiate EEO contact until February 12, 2021. The instant appeal from Complainant followed. On appeal, Complainant stated that he is on medical leave without pay from the Agency, does not have computer access, and does not know what is happening in his prior duty section. ANALYSIS AND FINDINGS Pursuant to 29 C.F.R. § 1614.105(a)(1), an aggrieved person must initiate contact with an EEO Counselor within 45 calendar days of the date of the alleged discriminatory action, or, in the case of a personnel action, within 45 calendar days of the effective date of the action. EEOC Regulation 29 C.F.R. § 1614.107(a)(2) allows an Agency to dismiss a complaint that has failed to comply with the 45-day statutory timeframe and, pursuant to § 1614.604(c), failed to warrant extension of the statutory timeframe. Here, the record discloses that the alleged discriminatory event (return of Complainant to prior position without permanent promotion) occurred effective July 24, 2020, but Complainant did not initiate contact with an EEO Counselor until February 12, 2021, which is well beyond the forty-five (45) day limitation period. While Complainant cited learning of other employees being converted to permanent positions on December 30, 2020, he does not adequately explain why he did not reasonably suspect discrimination prior to this time. The discovery of additional comparators, without more, does not warrant an extension of the time limit for initiating EEO counselor contact. CONCLUSION 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. 2021003864 3 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. 2021003864 4 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 9, 2021 Date