[Redacted], Lela M., 1 Complainant,v.Lloyd J. Austin III, Secretary, Department of Defense (Defense Commissary Agency), Agency.

Equal Employment Opportunity Commission

Dec 8, 2021

Appeal No. 2021002262 (E.E.O.C. Dec. 8, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Lela M.,1 Complainant, v. Lloyd J. Austin III, Secretary, Department of Defense (Defense Commissary Agency), Agency. Appeal No. 2021002262 Agency No. DeCA-00152-2020 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's final decision dated March 2, 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 Secretary at the Agency’s Hill Air Force Base in West Haven, Utah. On June 5, 2020, Complainant initiated EEO Counselor contact. Informa efforts to resolve her concerns were unsuccessful. On February 25, 2021, Complainant filed the instant formal complaint. Complainant claimed that she was subjected to sexual harassment and a hostile work environment based on her sex (female) when: a. On January 23, 2020, the Meat Cutter worker grabbed Complainant from behind and rubbed his chest and genital area against her back and buttocks; 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. 2021002262 2 b. On January 23, 2020, Complainant informed the Store Director of the Meat Cutter’s behavior. The Meat Cutter’s behavior continued until February 26, 2020, when he was placed on administrative leave. In its March 2, 2021 final decision, the Agency dismissed the formal complaint for untimely EEO Counselor contact, and alternatively, for the untimely filing of the formal complaint. The Agency determined that Complainant’s initial EEO Counselor contact was on June 5, 2020, which it found to be beyond the 45-day limitation period. The Agency further determined that Complainant failed to file her formal complaint within the fifteen-day time limitation. The instant appeal followed. Complainant, on appeal, argues that the reason for the delay in contacting an EEO Counselor was due, in pertinent part, that when she told her supervisor that she was assaulted by the Meat Cutter on January 23, 2020, he told her to write a statement and “and that I should have known [supervisor’s] history. I was failed by leadership from the beginning.” Complainant further stated that following the February 25, 2020 incident when the Meat Cutter tried to get close to her, she contacted Human Resources and learned that Human Resources had no record of her complaints. ANALYSIS AND FINDINGS EEOC Regulation 29 C.F.R. § 1614.105(a)(1) requires that complaints of discrimination be brought to the attention of Equal Employment Opportunity Counselor within forty-five 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 of the action. Our review of the EEO Counselor’s report indicates that the incidents referred to occurred on January 23, 2020 and February 25, 2020. The Agency determined that Complainant initiated EEO Counselor contact on June 5, 2020, more than 45-days after the discriminatory incident, and therefore, determined that Complainant’s EEO Counselor contact was untimely. On appeal, Complainant did not present persuasive arguments or evidence warranting an extension of the time limit for initiating EEO Counselor contact. See 29 C.F.R. § 1614.604(c). Therefore, we find that the Agency’s dismissal of the complaint was proper. CONCLUSION The Agency’s final decision dismissing the formal complaint for the reasons stated herein is AFFIRMED.2 2 Because we affirm the Agency’s dismissal of the reason stated herein, we find it unnecessary to address alternative dismissal grounds (untimely formal complaint filing). 2021002262 3 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. 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). 2021002262 4 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 June 2, 2021 Date