[Redacted], Kimberly Simmons a/k/a Breanne H., 1 Complainant,v.Denis R. McDonough, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity Commission

Oct 11, 2022

Appeal No. 2022002094 (E.E.O.C. Oct. 11, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Kimberly Simmons a/k/a Breanne H.,1 Complainant, v. Denis R. McDonough, Secretary, Department of Veterans Affairs, Agency. Appeal No. 2022002094 Agency No. 2004-0512-2021105602 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's decision dated February 8, 2022, dismissing her 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 Housekeeper at the Agency’s Loch Raven Medical Center in Baltimore, Maryland. On September 9, 2021, Complainant contacted the EEO Counselor. On December 21, 2021, Complainant filed a formal complaint alleging that the Agency subjected her to discrimination on the basis of sex (female) when: 1. From January 8 through March 2021, Complainant was harassed on several occasions by a coworker (Coworker 1) as follows: expletives were used such as “I don’t f**king know,” to a question, talking about genitals, and pushing a housekeeping cart into Complainant and blocking the exit; and 2. In April 2021, a coworker (Coworker 2), made comments about reporting the 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. 2022002094 2 incident in claim 1, and berated Complainant in the presence of patients and employees. The Agency dismissed the complaint for untimely EEO Counselor contact, pursuant to 29 C.F.R. § 1614.107(a)(2). The Agency reasoned that although Complainant emailed an EEO Specialist on April 16, 2021, the EEO Specialist provided an email of Complainant’s correspondence, which showed that Complainant was provided with a tri-fold attachment describing the EEO process. According to the Agency, the information provided by the EEO Specialist stated that an EEO complaint required contact with an EEO Counselor within 45 days. The instant appeal followed. ANALYSIS AND FINDINGS 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, pursuant to EEOC Regulation 29 C.F.R. § 1614.105(a)(1). 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. EEOC Regulations provide that the agency or the Commission shall extend the time limits when the individual shows that he was not notified of the time limits and was not otherwise aware of them, that he did not know and reasonably should not have known that the discriminatory matter or personnel action occurred, that despite due diligence he was prevented by circumstances beyond his control from contacting the Counselor within the time limits, or for other reasons considered sufficient by the agency or the Commission. 29 C.F.R. § 1614.105(a)(2). 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. 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, the record discloses that the last alleged discriminatory event occurred in April 2021, but Complainant did not initiate contact with an EEO Counselor until September 9, 2021, which is beyond the forty-five (45) day limitation period. However, on appeal, Complainant argues that the Agency’s dismissal was improper. Complainant maintains that her contact with the EEO Specialist initiated the EEO process, and therefore, the contact was timely. 2022002094 3 Complainant states that the EEO Specialist did not make it clear that she needed to contact the Office of Resolution Management to start the EEO process. Complainant adds that the EEO Specialist initiated conversations with management and implemented harassment workshops but failed to indicate that Complainant needed to take an additional step to continue the EEO process. In response, the Agency maintains that the EEO Specialist provided Complainant with a document that explained the EEO process and timelines. The Agency asserts that Complainant approached the EEO Specialist regarding compliance with a no-contact order and the summary of the conversation evidenced no intent to file a discrimination complaint. The Agency further notes that there is no evidence of any follow-up communication from Complainant to the EEO Specialist regarding a discrimination complaint. A review of the record shows that the brochure that the EEO Specialist provided to Complainant outlined the procedures and timelines to file an EEO complaint, including the requirement to initiate contact with an EEO Counselor by calling or visiting an Office of Resolution Management Field Office. Administrative File at 96-98. While the email memorializes a meeting between Complainant and the EEO Specialist, we do not find that Complainant exhibited the intent to pursue an EEO complaint on that date. It is well settled that a complainant satisfies the criterion of EEO Counselor contact by contacting an agency official logically connected with the EEO process and by exhibiting an intent to begin the EEO process. See Floyd v. National Guard Bureau, EEOC Request No. 05890086 (June 22, 1989). Therefore, we find that the Agency's dismissal pursuant to 29 C.F.R. § 1614.107(a)(2), on the grounds of untimely EEO Counselor contact, was proper. 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. 2022002094 4 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. 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. 2022002094 5 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 October 11, 2022 Date