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

Equal Employment Opportunity Commission

Jun 23, 2021

Appeal No. 2021001962 (E.E.O.C. Jun. 23, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Fletcher E.,1 Complainant, v. Christine Wormuth, Secretary, Department of the Army, Agency. Appeal No. 2021001962 Agency No. ARFTSAM19JUL02521 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's decision dated January 6, 2021,2 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 an Acquisition Management Team Chief at the Agency’s Acquisition Directorate in Fort Sam Houston, Texas. On September 12, 2019, Complainant filed a formal complaint alleging that the Agency subjected him to harassment and discrimination on the bases of race (White) and national origin (Hispanic) when: a. On November 26, 2019 his supervisor, DA, gave Complainant a negative mid- 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 The Agency’s dismissal decision is not dated. This date was noted in the Agency’s response to the appeal. The Agency is cautioned regarding the length of time (nearly two years) it took to issue its final decision. 2021001962 2 performance review and initiated a Performance improvement Plan; b. On November 7, 2019, DA denied Complainant’s leave request for November 8, 2019; c. On July 23, 2019, DA placed Complainant on AWOL status though he had requested sick leave for July 22, 2019, and was unavailable to complete a leave slip for July 23, 2019; d. Between April 9, 2019, and June 25, 2019, DA allowed LTC MP to bully, belittle harass, and humiliate the Complainant during staff meetings in front of other employees; e. On June 20, 2019, DA required the Complainant to bring a doctor’s note for his doctor’s appointments when no other employee was required to do so and there is no supporting policy; f. On May 15, 2019, DA failed to acknowledge Complainant’s birthday with a card and a cake; g. On May 19, 2019, DA issued negative performance counseling based on a negative performance counseling dated April 5, 2019, from LTC MP, to the Complainant on assigned tasks from September 24, 2018, which resulted in a lower annual appraisal than the African American employees who were also deficient in completing their tasks from September 24, 2018; h. On January 24, 2019, DA issued a written warning on excessive leave and absences to Complainant and placed a standard on him that is not shared by African American employees; i. On January 14, 2019, DA told the Complainant that he was AWOL, when he was not; and j. On or about November 2018, DA failed to acknowledge the Complainant’s contribution to the office’s card to her on the passing of her father, although she acknowledged the African American employees. The Agency dismissed the complaint, pursuant to 29 C.F.R. § 1614.107(a)(2), due to the untimely filing of the formal complaint. The instant appeal followed. ANALYSIS AND FINDINGS The regulation set forth at 29 C.F.R. § 1614.107(a)(2) states, in pertinent part, that an agency shall dismiss a complaint which fails to comply with the applicable time limits contained in 29 C.F.R. § 1614.106, which, in turn, requires the filing of a formal complaint within fifteen (15) days of receiving the notice of the right to do so. Complainant’s attorney asserts he received the notice of right to file a formal complaint on August 26, 2019. Although the notice indicated that Complainant had to file a formal complaint within fifteen (15) calendar days of its receipt, Complainant did not file his formal complaint until Thursday, September 12, 2019, which is beyond the limitation period. The Agency provided a copy of the email transmitting the formal complaint. On appeal, Complainant’s attorney states that he prepared the formal complaint and sent it to Complainant for his review on August 27, 2019. 2021001962 3 The attorney states he, “sent it to the EEO office soon after that, however it did not get to the EEO office until September 12, 2019. He states he does not know why the documents show they were transmitted on September 12, 2019, stating, “they may have been stuck in an outbox or somewhere else in the system…” and “the email may have been resent on September 12, 2019.” We find Complainant has not offered adequate justification to warrant an extension of the time limit for filing the complaint. The email to which the formal complaint was attached is clearly dated September 12, 2019, and there is no evidence to support the arguments made by the attorney.3 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. 3 On appeal, there is also argument about the Agency’s actions of informing Complainant that a page was missing from his formal complaint and the complaint was resent on September 25, 2019. However, we note that the Agency accepts that the complaint was filed on September 12, 2019. 2021001962 4 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. 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. 2021001962 5 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 June 23, 2021 Date