[Redacted], Hulda W., 1 Complainant,v.Janet L. Yellen, Secretary, Department of the Treasury (U.S. Mint), Agency.

Equal Employment Opportunity Commission

Sep 9, 2021

Appeal No. 2021003348 (E.E.O.C. Sep. 9, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Hulda W.,1 Complainant, v. Janet L. Yellen, Secretary, Department of the Treasury (U.S. Mint), Agency. Appeal No. 2021003348 Agency No. MINT-21-0380-F DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's final decision dated May 21, 2021, dismissing a formal 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 During the period at issue, Complainant worked as a Senior Human Resources Advisor, GS-15, at the Agency’s Mint Office in Washington, D.C. On February 3, 2021, Complainant initiated EEO Counselor contact. Informal efforts at resolution were not successful. On May 4, 2021, Complainant filed a formal complaint. According to the Agency, Complainant claimed that the Agency subjected her to harassment in retaliation for prior protected EEO activity when: 1. on January 5, 2021, Complainant’s laptop was “confiscated” due to the “Russian hack;” and 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. 2021003348 2 2. the Director and Mint Counsel refused to launch an investigation into Complainant’s 2018 report of “misuse” of a portion of her resume. In its final decision dated May 21, 2021, the Agency dismissed the formal complaint on two grounds. First, the Agency dismissed claim 1, pursuant to 29 C.F.R. § 1614.107(a)(1), for failure to state a claim. The Agency determined that Complainant was not aggrieved, and the alleged claim was not sufficiently severe or persuasive to state an actionable claim of harassment. Second, the Agency dismissed claim 2, pursuant to 29 C.F.R. § 1614.107(a)(2), for untimely EEO Counselor contact. The Agency determined that Complainant initiated EEO Counselor contact on February 3, 2021, which it found was well beyond the limitation period. The instant appeal followed. ANALYSIS AND FINDINGS Failure to State a Claim (claim 1) The regulation set forth at 29 C.F.R. § 1614.107(a)(1) provides, in relevant part, that an agency shall dismiss a complaint that fails to state a claim. An agency shall accept a complaint from any aggrieved employee or applicant for employment who believes that he or she has been discriminated against by that Agency because of race, color, religion, sex, national origin, age or disabling condition. 29 C.F.R. §§1614.103, 106(a). The Commission’s federal sector case precedent has long defined an “aggrieved employee” as one who suffers a present harm or loss with respect to a term, condition, or privilege of employment for which there is a remedy. Diaz v. Dep’t of the Air Force, EEOC Request No. 05931049 (Apr. 21, 1994). Our review of the claim 1 reflects that Complainant has stated a claim. A fair reading of claim 1, the EEO Counselor’s report, as well as Complainant’s statements on appeal, all reflect that Complainant has claimed that she was subjected to retaliatory harassment after she wrote a June 17, 2020 letter to the Agency’s Secretary outlining her concerns about racism at the Agency. After Complainant sent the letter, she and other co-workers participated in listening sessions with Mint and Treasury officials regarding the concerns Complainant raised in the June 2020 letter. Complainant states in the EEO Counselor’s report that after a January 5, 2021 listening session in which Complainant was a participant, Complainant was informed that her laptop would need to be confiscated “under the guise that her laptop had been compromised in a Russian hack, back in November 2020.” Complainant further claims that “laptops were only confiscated from the people that participated in the listening session.” Consequently, Complainant has alleged that she was adversely affected and subjected to retaliatory harassment after she participated in prior protected EEO activity. Additionally, Complainant indicates, on appeal, that: (1) she had incurred mailing costs when she shipped her old laptop back because a return shipping label was not provided; (2) she did not have access to a computer for one week while waiting to receive the replacement laptop; (3) she 2021003348 3 was unable to attend virtual meetings during the period she waited to receive the replacement laptop; (4) documents on her old laptop were not transferred to her new laptop; and (5) and she no longer had access to files stored on the H drive. Thus, Complainant has adequately alleged she suffered a present harm or loss with respect to a term, condition, or privilege of employment for which there is a remedy. Therefore, we remand this claim to the Agency for further processing as indicated in our Order below. Untimely EEO Counselor Contact (claim 2) 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 personnel action, within forty-five (45) days of the effective date of the action. There is no dispute that Complainant initiated EEO Counselor contact on February 3, 2021. Complainant claims that the Agency failed to investigate her 2018 allegation which occurred approximately three years after Complainant initiated EEO Counselor contact. For this reason, the Agency dismissed this claim for untimely EEO Counselor contact. However, the Commission has adopted a “reasonable suspicion” 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 (Feb. 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, Complainant asserts that she did not become aware until January 21, 2021, that the Agency had not investigated her 2018 allegation, and that she was therefore within the 45-day limitation period. However, documentation in record reflects that the Agency informed Complainant as early as May 20, 2020 that it would deny Complainant’s April 20, 2020 request for an investigation regarding a 2018 allegation that Complainant was the target of multiple fake investigations following disclosure of the unauthorized use of her resume. In pertinent part, the letter states, “[i]n consultation with the Office of the Chief Counsel, I have decided to deny your request . . .”2 Therefore, Complainant had reasonable suspicion that the Agency would not grant her April 20, 2020 request for investigation as early as May 20, 2020. However, Complainant waited approximately nine months to contact an EEO Counselor regarding this issue. Therefore, Complainant’s EEO Counselor contact for this claim is untimely and Complainant has not presented any persuasive reasons for extension of the 45-day limitation period. 2 The letter explains that Complainant’s allegations had been previously investigated and/or are part of pending investigation inquires. Specifically, the letter acknowledged that granting Complainant’s April 20, 2020 request “would be duplicate of previous or ongoing investigations or inquiries and is therefore unnecessary.” 2021003348 4 We further note that retaliatory harassment is the only basis raised in the instant complaint. As previously discussed, Complainant’s prior EEO activity occurred as early as June 17, 2020. Because Complainant’s prior protected EEO activity occurred after the Agency denied Complainant’s April 20, 2020 request to investigation her 2018 allegation on May 20, 2020, Complainant cannot establish a prima facie case for retaliatory harassment for this claim. For the reasons discussed above, we affirm the Agency’s dismissal of this claim. CONCLUSION The Agency’s dismissal of the complaint is AFFIRMED in part and REVERSED in part. Specifically, the Agency dismissal of claim 2 was proper and is AFFIRMED. However, the Agency dismissal of claim 1 is REVERSED. Claim 1 is REMANDED to the Agency for further processing in accordance with the ORDER below. ORDER (E0618) The Agency is ordered to process the remanded claim (retaliatory harassment including the confiscation of her laptop) in accordance with 29 C.F.R. § 1614.108 et seq. The Agency shall acknowledge to the Complainant that it has received the remanded claims within thirty (30) calendar days of the date this decision was issued. The Agency shall issue to Complainant a copy of the investigative file and also shall notify Complainant of the appropriate rights within one hundred fifty (150) calendar days of the date this decision was issued, unless the matter is otherwise resolved prior to that time. If the Complainant requests a final decision without a hearing, the Agency shall issue a final decision within sixty (60) days of receipt of Complainant’s request. As provided in the statement entitled "Implementation of the Commission's Decision,” the Agency must send to the Compliance Officer: 1) a copy of the Agency’s letter of acknowledgment to Complainant, 2) a copy of the Agency’s notice that transmits the investigative file and notice of rights, and 3) either a copy of the complainant’s request for a hearing, a copy of complainant’s request for a FAD, or a statement from the agency that it did not receive a response from complainant by the end of the election period. 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. 2021003348 5 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. 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. 2021003348 6 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 (T0610) This decision affirms the Agency’s final decision/action in part, but it also requires the Agency to continue its administrative processing of a portion of your complaint. 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 on both that portion of your complaint which the Commission has affirmed and that portion of the complaint which has been remanded for continued administrative processing. 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 your appeal with the Commission, until such time as the Agency issues its final decision on your complaint. 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. 2021003348 7 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 September 9, 2021 Date