[Redacted], Jean F., 1 Complainant,v.Pete Buttigieg, Secretary, Department of Transportation (Federal Aviation Administration), Agency.

Equal Employment Opportunity Commission

Aug 18, 2021

Appeal No. 2021002600 (E.E.O.C. Aug. 18, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Jean F.,1 Complainant, v. Pete Buttigieg, Secretary, Department of Transportation (Federal Aviation Administration), Agency. Appeal No. 2021002600 Agency No. 2021-29015-FAA-02 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's decision dated April 14, 2021, 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., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Drug & Alcohol Compliance & Enforcement Inspector, FV-14, at the Agency’s Miami Compliance & Enforcement Field Office in Miramar, Florida. On January 22, 2021, Complainant filed a formal complaint alleging that the Agency subjected him to discrimination and/or harassment (hostile work environment) on the bases of race (Caucasian), sex (male), age, and reprisal for prior protected EEO activity when: 1. On an unspecified date, Complainant was made aware that employees whom he supervised made a higher salary than he did. 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. 2021002600 2 2. On June 24, 2020, he learned he had not been selected for the position of Center Manager for the Eastern Compliance Office. The Selectee was a Hispanic male and Complainant’s manager, a Hispanic male, made the selection. 3. On July 13, 2020, Complainant’s Branch Manager accused Complainant of mishandling two safety inspection cases in an email, but Complainant was not allowed to see the email. The Agency initially dismissed these claims in a decision dated March 2, 2021 for untimely filing, alleging that Complainant did not file his formal complaint within the requisite time frame of receiving his Notice of Right to File. Complainant appealed, contending the Agency was relying on incorrect dates. On appeal, the Agency acknowledged Complainant had correctly identified an error in the Agency’s dismissal letter and that the dismissal letter as issued was not correct. The Agency requested the Commission remand the appeal to the Agency for corrective action. Subsequently, the Agency issued a Revised Dismissal on April 14, 2021, which revised and superseded the March 2, 2021 dismissal. In its Revised Dismissal, the Agency dismissed Complainant’s claims pursuant to 29 C.F.R. §§ 1614.105 and 1614.107(a)(2) for untimely EEO counselor contact, stating Complainant did not contact an EEO counselor until October 14, 2020. Complainant then timely filed the instant appeal on May 12, 2021. On appeal, Complainant contends he timely submitted an intake request to the Agency’s approved EEO portal at https://eeoefile.faa.gov/ on August 5, 2020, but the Agency failed to take action until he contacted them again several months later. The Agency did not file an appellate brief after Complainant’s May 12, 2021 appeal. ANALYSIS AND FINDINGS EEOC Regulation 29 C.F.R. § 1614.105(a)(1) provides that an aggrieved person must 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 a personnel action, within forty-five (45) days of the effective date of the action. EEOC Regulation 29 C.F.R. §1614.105(a)(2) allows the Agency or the Commission to extend the time limit if Complainant can establish that Complainant was not aware of the time limit, that Complainant did not know and reasonably should not have known that the discriminatory matter or personnel action occurred, that despite due diligence complainant 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 Commission. Additionally, a complainant satisfies the requirement of counselor contact by contacting an agency official “logically connected” with the EEO process, even if that official is not an EEO Counselor, and by exhibiting an intent to begin the EEO process. 2021002600 3 See Jayna A. v. U.S. Postal Serv., EEOC Appeal No. 2019000179 (Nov. 29, 2018), citing Cristantiello v. Dep’t of the Army, EEOC Appeal No. 01992817 (Dec. 19, 2000), Cox v. Dep’t of Hous. and Urban Dev., EEOC Request No. 05980083 (July 30, 1998); Allen v. U.S. Postal Serv., EEOC Request No. 05950933 (July 9, 1996); Jones v. Dep't of the Army, EEOC Request No. 05900435 (Sept. 7, 1990). Here, on appeal, the Complainant reports he contacted the Agency’s EEO intake portal on August 5, 2020 in an attempt to file an EEO complaint. He also provides a print-out entitled “EEO efile” that is dated August 5, 2020, in which he alleged harassment and hostile work environment arising out of an incident that occurred on July 13, 2020, within 45 days of his portal submission. (Appeal, pp. 10-13). The Agency does not dispute that Complainant contacted the EEO intake portal on August 5, 2020. In fact, the EEO counselor’s report states that the Complainant: filed an eFile EEO Complaint on 08/05/2020. However the eFile System was down with so many problems, it has been permanently discontinued and a new process created. FAA Civil Rights was unaware of the eFile until [Complainant] contacted the Intake Unit on 12/16/2020 at which time the EEO Specialist requested the date of the latest incident, the 10/14/2020 date was provided and used as the contact date in order to process the complaint and have time to try to resolve at the Informal Level, if possible. (Complaint File, p. 24). The EEO counselor also sent an email to Complainant on December 22, 2020 stating she “want[ed] to apologize for the problems we had with the eFile process. Our Intake team has been working diligently to get and keep it working with obvious challenges.” (Appeal, p. 16). Thus it appears the Agency was well aware of potential issues with its EEO filing portal. The Commission has held that where there is an issue of timeliness, the agency always the burden of obtaining sufficient information to support a reasoned determination as to timeliness. Williams v. Dep’t of Defense, EEOC Request No. 05920506 (August 25, 1992). The Agency has provided no such information. Therefore, the record reflects Complainant met the requirements of 29 C.F.R. §1614.105(a)(1). He timely contacted his Agency’s EEO portal, which is logically connected to the process, and expressed a complaint about an allegedly discriminatory event which took place within 45 days of his August 5, 2020 filing. The Agency improperly dismissed the complaint pursuant to 29 C.F.R. § 1614.107(a)(2) for untimely EEO counselor contact. 2021002600 4 CONCLUSION The Agency's final decision dismissing the formal complaint is REVERSED and REMANDED for further processing as set forth below. ORDER (E0618) The Agency is ordered to process the remanded claims 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. 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. 2021002600 5 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. 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. 2021002600 6 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 (R0610) This is a decision requiring the Agency to continue its administrative processing of your complaint. However, if you wish to file a civil action, you have the right to file such action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision. 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 filed your appeal with the Commission. 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. 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 August 18, 2021 Date