[Redacted], Irene C., 1 Complainant,v.Dr. Miguel A. Cardona, Secretary, Department of Education, Agency.Download PDFEqual Employment Opportunity CommissionMay 19, 2021Appeal No. 2021001386 (E.E.O.C. May. 19, 2021) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Irene C.,1 Complainant, v. Dr. Miguel A. Cardona, Secretary, Department of Education, Agency. Appeal No. 2021001386 Agency No. ED-2021-OESE-0002 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's final decision dated December 2, 2020, 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 an Education Program Specialist, Grade GS- 13, at the Agency’s Office of Elementary and Secondary Education (OESE) in Washington, District of Columbia. On October 7, 2020, Complainant initiated contact with an EEO Counselor. Informal efforts to resolve her concerns were unsuccessful. On November 19, 2020, Complainant filed a formal EEO complaint alleging the Agency subjected her to unlawful employment discrimination based on race, religion, color and age when: 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 2021001386 1. From 2016 to 2018, Complainant "was covertly discriminated against" when she received lower-than-expected year-end REsults ACHieved (REACH) performance ratings because she "was a new employee" and "not in the friend or in-group circle of staff in the Office of State Support;” and 2. On October 31, 2019, Complainant became aware that she had received a lower-than- expected Fiscal Year 2019 REACH performance rating. On December 2, 2020, the Agency issued a final decision. The Agency dismissed the formal complaint for untimely EEO contact, pursuant to 29 C.F.R. § 1614.107(a)(2). The Agency determined that Complainant's initial EEO Counselor contact was on October 7, 2020, which it found to be beyond the 45-day limitation period for both claims. The instant appeal followed. On appeal, Complainant raises new matters not raised in her formal complaint or during pre-complaint processing. Complainant states, for example, that on December 18, 2020, OESE’s director abruptly dismissed Complainant from a phone call. Complainant states that this director placed unnecessary pressure on staff about completing tasks, and that he has been disrespectful, rude, intolerable to her and co-workers. ANALYSIS AND FINDINGS EEOC Regulation 29 C.F.R. § 1614.105(a)(1) requires that an aggrieved employee 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 personnel action, within forty-five (45) days of the effective date of the action. In accordance with 29 C.F.R. § 1614.105(a)(2), an agency or the Commission shall extend the 45-day time limit if the aggrieved employee shows that she was not notified or otherwise aware of the time limits, that she did not know and reasonably should not have been known that the discriminatory matter or personnel action occurred, that despite due diligence she was prevented by circumstances beyond her control from contacting the EEO counselor within the time limit, or for other reasons considered sufficient by the agency or the Commission. EEOC Regulation 29 C.F.R. § 1614.107(a)(2) states that an agency shall dismiss an entire complaint that fails to comply with the applicable time limits. Here, the record revealed that the allegedly discriminatory REACH evaluations occurred in 2016, 2017 and October 31, 2019, but that Complainant did not initiate contact with an EEO Counselor until October 7, 2020, which was well beyond the forty-five (45) day limitation period. On appeal, Complainant has not provided adequate justification for an extension of the 45-day period for initiating timely EEO Counselor contact. We note that during pre-complaint processing and in the formal complaint, Complainant exclusively raised the issue of the performance ratings which are the subject of claims 1 and 2. Now, for the first time on appeal, Complainant asserts that the ratings were part of a pattern of harassment, and identifies new matters not raised below, such as being dismissed from a December 18, 2020 meeting, which purportedly occurred even after the instant final decision was issued. 3 2021001386 To the extent that Complainant raised new claims on appeal, she is advised to contact an EEO Counselor if she wishes to pursue these new matters. We determine that the Agency properly dismissed the formal complaint for untimely 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. 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). 4 2021001386 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. 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 May 19, 2021 Date Copy with citationCopy as parenthetical citation