[Redacted], Lloyd H., 1 Complainant,v.Antony Blinken, Secretary, Department of State, Agency.

Equal Employment Opportunity Commission

Feb 2, 2021

Appeal No. 2021000274 (E.E.O.C. Feb. 2, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Lloyd H.,1 Complainant, v. Antony Blinken, Secretary, Department of State, Agency. Appeal No. 2021000274 Agency No. DOS-0108-20 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's decision dated September 10, 2020, 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., and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. BACKGROUND At the time of events giving rise to this complaint, Complainant was an applicant for employment with the Agency. On January 13, 2020, Complainant initiated contact with an Agency EEO counselor and, on March 18, 2020, filed a formal complaint alleging that the Agency subjected him to discrimination on the bases of national origin (Russian) and disability. In June 2020, the Agency informed Complainant that his disability claim was being subsumed into a pending class action and would be held in abeyance. See EEOC Appeal No. 2020003622 (September 30, 2020). As a result, only Complainant’s national origin discrimination claim went forward for processing. A review of the formal complaint, as well as the EEO counseling report, shows he alleged discrimination based on his national origin (Russian) when, on December 19, 2019, and again on 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. 2021000274 2 January 13, 2020, he was notified by the Agency, without adequate explanation, that it was ending his candidacy to the Foreign Service as a Diplomatic Security Special Agent for failure to meet medical qualification standards. The Agency initially accepted the complaint and commenced an investigation. However, by decision dated September 10, 2020, the Agency issued a final decision dismissing the complaint, pursuant to 29 C.F.R. § 1614.107(a)(2), for untimely EEO counselor contact. The instant appeal followed. 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 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. Usually, our review of an agency’s procedural dismissal of a complaint only includes information gathered during the EEO counseling. However, here we have the benefit of an affidavit prepared by Complainant, as well as affidavits from several Agency officials, taken during the Agency’s initial investigation of the complaint. According to his affidavit, Complainant applied for the Special Agent position in 2017 and received a conditional offer of employment contingent on passing a medical assessment. In December 2017, he was notified that he did not meet the Agency’s medical requirement for World Wide Availability due to a medical condition. He appealed that assessment on December 22, 2017, and requested a waiver. According to affidavits from Agency officials, the Agency’s Employment Review Committee (ERC) reviewed Complainant’s appeal and, on December 12, 2018, notified him that it had denied his request for a waiver. A review of the December 12, 2018 notification also shows it explicitly stated that Complainant’s candidacy for the Special Agent position was terminated. Complainant apparently continued to communicate with various Agency officials about the denial of the waiver. According to the EEO counselor’s report, as part of this communication, Complainant submitted new medical information in December 2019. However, despite the more recent dates identified by Complainant in his EEO complaint, the record indicates that no further Agency decision was made with regard to Complainant’s application for the Special Agent position after December 2018. Based on this evidence, it is clear that Complainant was fully aware that his candidacy for the Special Agent position had been terminated in December 2018 because it had been determined that he did not meet the Agency’s medical qualification standards. However, he did not initiate contact with an EEO counselor on this matter until January 2020, well beyond the 45-day limitation period. While it appears that Complainant continued to communicate with Agency officials after December 2018 in an attempt to change the decision, there is no evidence of any further Agency action/decision on the matter. 2021000274 3 The Commission has consistently held that the utilization of agency procedures, union grievances, and other remedial processes to challenge an adverse action does not toll the time limit for contacting an EEO Counselor. See Ellis v. United States Postal Service, EEOC Appeal No. 01992093 (November 29, 2000). Accordingly, the Agency's final decision dismissing Complainant's complaint for untimely EEO counselor contact 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. 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. 2021000274 4 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. 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 February 2, 2021 Date