[Redacted], Joshua F., 1 Complainant,v.Andrew M. Saul, Commissioner, Social Security Administration, Agency.

Equal Employment Opportunity Commission

Nov 22, 2021

Appeal No. 2021004705 (E.E.O.C. Nov. 22, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Joshua F.,1 Complainant, v. Andrew M. Saul, Commissioner, Social Security Administration, Agency. Appeal No. 2021004705 Agency No. KC-21-0231-SSA DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's decision dated July 12, 2021, dismissing his complaint of 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 a Contact Representative, GS-0962-05, at the Agency’s Kansas City Teleservice Center in Kansas City, Missouri. Complainant received his excepted service appointment effective September 29, 2019. His appointment was subject to satisfactory completion of a one-year probationary period. During his probationary period, he was issued a Notice of Termination which was effective July 30, 2020. The Notice included a “Notice of Rights” which indicated that if “you believe that your termination is solely based on race, color, religion, sex, pregnancy, national origin, disability, genetic information, or reprisal for prior Equal Employment Opportunity (EEO) activity, you have the right to file a complaint through the Agency’s EEO procedure.” The Notice also informed Complainant that “[y]ou must first consult an EEO Counselor within 45 calendar days after the effective date of this action.” 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. 2021004705 2 On September 15, 2020, Complainant emailed the Missouri Department of Labor (DOL) regarding his termination and alleged discrimination at the Agency. On September 28, 2020, a representative from the Missouri Commission on Human Rights (MCHR) emailed the Complainant and informed him that if he had filed a claim with the EEOC, there was no need to file with their agency as they had a work share agreement. The record is absent additional communication between Complainant and MCHR following this exchange until February 2021. On February 1, 2021, Complainant emailed MCHR and asked, "… if I understand correctly this filing also files/protects my rights with the EEOC, correct?" On February 9, 2021, MCHR emailed Complainant and indicated that they had received his intake, but that his case was past their 180-day time limit. MCHR further explained that if they found jurisdiction, the EEOC had a 300-day time limit and they could share his case with EEOC. In a response on the same date, Complainant stated that he filed his initial concern mid-September 2020, and he was released from work on July 30, 2020, and was therefore within the 45-day limit. He questioned whether this protected the 180-day filing time period with MCHR. On February 18, 2021 MCHR responded and explained that the 180-day filing time was in terms of when MCHR filed the charge of discrimination, rather than the time an intake is filed. MCHR noted that while the Complainant did send the intake within the 180-day period, because they were not able to get a charge created then, they would instead send the case to the EEOC to investigate as the EEOC had a 300-day filing period. Complainant contacted an EEO counselor at the Agency on February 5, 2021. On May 18, 2021, Complainant filed a formal complaint alleging that the Agency subjected him to discrimination on the bases of race (African-American) and color (Black) when: 1. Beginning in March 2020, Complainant was subjected to non-sexual harassment, including when an avatar was created of him which greatly exaggerated the darkness of his skin, his hobby was listed as napping, and he was spoken down to as if he had a mental condition; 2. On July 30, 2020, he was provided a Notice of Termination During Probationary Period; and 3. Management denied him Weingarten rights. On July 12, 2021, the Agency dismissed complainant's complaint for untimely EEO counselor contact, finding that he had not initiated the EEO process within 45 days of the date of the matter alleged to be discriminatory. 29 C.F.R. § 1614.107(a)(2). The Agency also dismissed claim 3 regarding the denial of Weingarten Rights pursuant to 29 C.F.R. § 1614.107(a)(1) for failure to state a claim. The Agency noted that claim 3 constituted a collateral attack and impermissibly used the EEO process. This appeal followed. On appeal, Complainant argues that his contact was timely as is apparent from his email exchanges with MCHR. 2021004705 3 In response, the Agency argues that Complainant was aware of the 45-day period due to the Notice of Rights attached to his Notice of Termination. The Notice of Rights explained that if Complainant believed his termination was due to a protected basis, he had the right to file a complaint through the Agency’s EEO procedure. The Notice of Rights also explained that Complainant had to consult an EEO counselor within 45 calendar days after the effective date of his termination. ANALYSIS AND FINDINGS With regard to the Agency’s decision regarding claim 3 involving Complainant’s Weingarten Rights, Complainant must raise such claims within the collective bargaining agreement process and not here. Under 29 C.F.R. § 1614.107(a)(1), the EEO process cannot be used to lodge a collateral attack against another proceeding. “A claim that can be characterized as a collateral attack, by definition, involves a challenge to another forum's proceeding, such as the grievance process, the unemployment compensation process, or the workers' compensation process.” See Lingad v. U.S. Postal Serv., EEOC Request No. 05930106 (June 25, 1993); Kleinman v. U.S. Postal Serv., EEOC Request No. 05940585 (Sept. 22, 1994); Wills v. Dep't of Def., EEOC Request No. 05970596 (July 30, 1998). Thus, a claim involving an issue relating to union representation (e.g. denial of Weingarten Rights) constitutes a collateral attack on the grievance process. See Spiwak v. U.S. Postal Serv., EEOC Appeal No. 01991180 (Jan. 26, 2001); Shibel v. Dep't of the Navy, EEOC Appeal No. 01987064 (Aug. 12, 1999). As such, we find that the dismissal of claim 3 for failure to state a claim was appropriate. 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. The Commission has adopted a "reasonable suspicion" standard (as opposed to a "supportive facts" 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. The Commission has held that in order to establish EEO Counselor contact, an individual must contact an agency official logically connected to the EEO process and exhibit an intent to begin the EEO process. Robinson v. Dep’t of the Treasury, EEOC Appeal No. 01A44877 (Apr. 20, 2006). The Commission has also consistently held that a complainant satisfies the criterion of EEO 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. See 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). 2021004705 4 In this case, the last possible date complainant could have been subjected to discrimination was July 30, 2020, the effective date of his Notice of Termination. For his complaint to be considered timely filed, he should have initiated EEO counseling no later than September 14, 2020.2 Complainant contacted the MHRC on September 15, 2020. Assuming that the MHRC was an entity logically connected to the EEO process, Complainant’s contact was still untimely. Furthermore, Complainant’s February 5, 2021, contact of the Agency’s EEO Counselor is also well beyond the 45-day limit. As noted by the Agency on appeal, Complainant’s Notice of Termination included a Notice of Rights section which defined the appropriate protocol for timely contacting an EEO Counselor. Complainant has not presented any persuasive arguments or evidence warranting an extension of the time limit for initiating EEO Counselor contact. 29 C.F.R. § 1614.105(a)(2). Therefore, his claims were properly dismissed as untimely. CONCLUSION Accordingly, we AFFIRM the Agency’s final decision. 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 2 We note that the 45th day was Sunday, September 13, 2020. Therefore, Complainant had until the next business day, Monday, September 14, 2020, to contact the EEO Counselor. 2021004705 5 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. 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. 2021004705 6 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 22, 2021 Date