[Redacted], Gordon D., 1 Complainant,v.Frank Kendall, Secretary, Department of the Air Force, Agency.

Equal Employment Opportunity Commission

Nov 30, 2021

Appeal No. 2021004632 (E.E.O.C. Nov. 30, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Gordon D.,1 Complainant, v. Frank Kendall, Secretary, Department of the Air Force, Agency. Appeal No. 2021004632 Hearing No. 410-2020-00368X Agency No. 4U1L1901339P20 DECISION On August 12, 2021, Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the dismissal by an Administrative Judge (AJ) on May 10, 2021, concerning an equal employment opportunity (EEO) complaint claiming 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., and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq.2 BACKGROUND The record reflects that Complainant had served on active duty for fourteen years and six months. Complainant achieved a craftsmen/supervisor level in the Logistics Materiel Supply career field, and reached the enlisted rank of Staff Sergeant, Grade E-5. 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 AJ’s dismissal became the Agency’s final action when the Agency did not issue a final action. 2 2021004632 After his military service, Complainant applied for employment in a civilian position, as a Supply Technician, Grade GS-7, at the Agency’s 915th Civil Engineering Squadron Charleston Air Force Base, South Carolina. On April 5, 2018, Complainant was tentatively selected for the position. However, Agency medical screening determined that Complainant had disqualifying health conditions for which a waiver was not obtained. On November 29, 2018, the Agency therefore notified Complainant that the employment offer was rescinded. On August 2, 2019, Complainant initiated EEO Counselor contact. Informal efforts to resolve his concerns were not successful. On September 4, 2019, Complainant filed the instant formal EEO complaint, claiming that the Agency discriminated against him based on disability (Attention Deficit Disorder and Reactive Airway Disease) when: a. On April 5, 2018, Complainant received a tentative job offer for the position of Supply Technician, GS-07, Air Force Reserve Technician, Vacancy Announcement Number 4U- ART-1012855-948153-TJM, and on November 29, 2018, the tentative job offer was rescinded by the 560th RED HORSE Squadron Commander, due to an erroneous medical diagnosis by the Medical Operations Division Chief, a civilian doctor at the Fort Jackson Military Entrance Processing Station (MEPS) and a Colonel in the 315th Aerospace Medicine Squadron; and b. On or after February 8, 2019, the 315th Airlift Wing’s Inspector General (IG) sent Complainant an undated memorandum informing him his complaint regarding incorrect medical records was not an IG issue, but a civilian personnel issue. After investigating, the Agency provided Complainant with a copy of the report of investigation and notice of his right to request a hearing before an EEOC Administrative Judge (AJ). Complainant timely requested a hearing. Before the AJ, the Agency moved for dismissal based on untimely EEO Counselor contact. In its motion, the Agency asserted that Complainant’s employment offer was rescinded via email on November 29, 2018, but that Complainant did not contact an EEO Counselor until August 2, 2019. On April 18, 2021, Complainant responded and opposed the Agency’s motion. On May 10, 2021, issued a decision granting the Agency’s motion and issued an order dismissing Complainant’s complaint. On appeal, and through legal counsel, Complainant argued that his EEO contact had been timely because he had attempted to contact the EEO counselor via letter sent to EEOC’s Atlanta District Office on May 11, 2019. Complainant also stated that he had attempted to contact an EEO representative before he sent the letter to the Atlanta District. Counsel for Complainant further contended that the 45-day time limit be waived because the Agency acted in bad faith by stating that it would work with Complainant to correct the inaccurate diagnoses. According to Counsel, in April 2019, Complainant proved he had been misdiagnosed, but the Agency declined to select him for the position. 3 2021004632 ANALYSIS AND FINDINGS EEOC Regulation 29 C.F.R. § 1614.105(a)(1) requires that complaints of discrimination should be brought to the attention of the Equal Employment Opportunity 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) states, in pertinent part, that an agency shall dismiss a complaint for failure to comply with the applicable time limits. Here, the record indicates that Complainant’s offer of employment was rescinded in November 2018, but he did not initiate EEO counseling until over eight months later on August 2, 2019. Similarly, with regard to his claim about the IG, Complainant’s EEO counselor contact was well beyond the 45-day limitation period from this event. All EEO time limits are subject to waiver, estoppel or equitable tolling under 29 C.F.R. § 1614.604(c). However, we conclude Complainant failed to present an adequate reason to excuse his failure to adhere to the regulatory timeframes. The record includes the letter to the Commission’s Atlanta District Office, dated May 11, 2019, wherein Complainant attempted to raise the matters he alleged were discriminatory. The record is devoid of evidence that Complainant contacted an Agency EEO representative before that date. Complainant’s Counsel asserts that the time limit was tolled because the Agency acted in bad faith when Complainant sought to reverse the rescission of the employment offer through the chain-of-command and reviewing authorities. The Commission, however, has consistently held that the use of internal agency procedures, including grievances to management, IG complaints and other remedial processes, does not toll the time limit for contacting an EEO counselor. D’Angelo v. Dep’t of Justice, EEOC Appeal No. 012011008 (May 12, 2011) citing Ellis v. U.S. Postal Serv., EEOC Appeal No. 01992093 (Nov. 29, 2000). Therefore, under 29 C.F.R. § 1614.604(c), we cannot equitably extend the time limit for initiating EEO Counselor contact. Therefore, the dismissal of Complainant’s complaint for untimely EEO Counselor contact was in accordance with 29 C.F.R. § 1614.107(a)(2). CONCLUSION Accordingly, the AJ’s dismissal of the complaint on timeliness grounds, which became the Agency’s final action, is AFFIRMED. 4 2021004632 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. 29 C.F.R. § 1614.405; EEO Management Directive for 29 C.F.R. Part 1614 at Ch. 9 § VII.B (Aug. 5, 2015). Complainant should submit his 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 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 St. 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. 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). 29 C.F.R. § 1614.403(g). Either party’s request or statement or brief in opposition must also include proof of service on the other party, unless Complainant files his 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. 29 C.F.R. § 1614.604(c). 5 2021004632 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. 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 November 30, 2021 Date