[Redacted], Lidia B., 1 Complainant,v.Gina M. Raimondo, Secretary, Department of Commerce (Bureau of the Census), Agency.

Equal Employment Opportunity Commission

Nov 29, 2021

Appeal No. 2021004714 (E.E.O.C. Nov. 29, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Lidia B.,1 Complainant, v. Gina M. Raimondo, Secretary, Department of Commerce (Bureau of the Census), Agency. Appeal No. 2021004714 Agency No. 63-2021-00382 DECISION Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's decision dated July 21, 2021, 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. and the Equal Pay Act of 1963, as amended, 29 U.S.C. § 206(d) et seq. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Program Analyst, GG-11, at the Agency’s U.S. Census Bureau Coverage Management Branch facility in Washington, D.C. Complainant contacted the EEO counselor on May 12, 2021. On July 7, 2021, Complainant filed her formal complaint alleging that the Agency subjected her to discrimination on the bases of sex (female), age (56), and reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 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. 2021004714 2 1. From the period of June 29, 2019 through August 2, 2019, despite performing the same job duties as another employee at a higher grade, she was paid less than this employee. On July 21, 2021, the Agency dismissed the complaint for untimely EEO counselor contact pursuant to 29 C.F.R. § 1614.107(a)(2). Complainant alleged concerns regarding her pay specifically from June 29, 2019 through August 2, 2019. The Agency reasoned that the actions raised in the instant complaint were discrete acts with such a degree of permanence that it should have triggered Complainant’s awareness and her duty to assert her rights with an EEO counselor within 45 days of the pay disparity. The Agency noted that Complainant had previously raised other allegations of discrimination pertaining to the time period from October 1, 2019 through April 2020 on October 3, 2019 (Complaint Number 63-2020-00003) and on January 28, 2020 (Complaint Number 63-2020-228). The Agency determined that Complainant did not raise the instant matter until May 12, 2021, well beyond the 45-day time period in which to raise the incidents, and therefore dismissed the complaint for untimely counselor contact. On appeal, Complainant seeks to reverse the Agency’s dismissal. The Agency did not respond to Complainant’s appeal. ANALYSIS AND FINDINGS EEOC Regulation 29 C.F.R. § 1614.105(a)(1) requires that complaints of discrimination should be brought to the attention of 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. 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. We find that Complainant did not contact the EEO counselor in a timely manner. The alleged discriminatory actions took place in 2019, and Complainant should have been aware of the issue at that time. Complainant did not contact an EEO counselor until May 12, 2021. The record reflects that Complainant previously filed two EEO complaints which had, at the time, been pending before an EEOC Administrative Judge (AJ). Complainant told the EEO counselor that she tried to raise the instant claim with the AJ assigned to her pending cases but was unable to do so.2 Therefore, she contacted the EEO counselor in May 2021. We find that the alleged event ended in August 2019, and Complainant provided no evidence that she tried to raise the issue at any time prior to 2021, long after the 45-day time limit had passed. 2 We note that her prior EEO complaints were filed in October 2019 and January 2020. Therefore, even if she raised the instant matter with the AJ, it was well beyond the 45-day time limit. 2021004714 3 We find that due to Complainant’s previous EEO actions, she knew or should have known of the 45-day time limitation for initiating counselor contact. See Balunsat v. Dep’t of the Army, EEOC Doc 05880168 (Aug. 1, 1998). In addition, Complainant has also not provided any explanation for her extensive delay in contacting the EEO Counselor. To the extent Complainant asserts on appeal that the Agency should have solely classified her complaint as an allegation of discrimination in violation of the Equal Pay Act, her argument has no impact on the timeliness of her complaint. The regulatory time limits contained in 29 C.F.R. Part 1614 apply to all claims filed under both Title VII and the Equal Pay Act, among other statutes, and do not provide for a different administrative process for Equal Pay Act claims. See 29 C.F.R. § 1614.101. We therefore find that the Agency properly dismissed the complaint pursuant to 29 C.F.R. § 1614.107(a)(2) for untimely counselor contact. CONCLUSION Accordingly, the Agency’s final decision dismissing the 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. 2021004714 4 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. 2021004714 5 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 29, 2021 Date