[Redacted], Lorriane L., 1 Complainant,v.Antony J. Blinken, Secretary, Department of State, Agency.

Equal Employment Opportunity Commission

Feb 23, 2021

Appeal No. 2021001196 (E.E.O.C. Feb. 23, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Lorriane L.,1 Complainant, v. Antony J. Blinken, Secretary, Department of State, Agency. Appeal No. 2021001196 Agency No. DOS-0284-20 DECISION On November 11, 2020, Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from an October 13, 2020 final Agency decision (FAD) dismissing her complaint of unlawful employment discrimination in violation of the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. BACKGROUND Complainant, a U.S. citizen, was hired by the Agency effective October 17, 2005, as a Secretary, Pay Plan 01, Grade 06 (PP-01-06). She was competitively promoted to Administrative Assistant (Move Coordinator), PP-01-09 effective April 1, 2007, was reassigned to Administrative Assistant, PP-01-08 effective April 26, 2009, and retired on December 31, 2018. All these jobs were with the American Embassy Berlin in Berlin Germany, part of U.S. Mission Germany. Complainant worked as Locally Employed (LE) Staff, meaning staff who were legal permanent residents of Germany, including U.S. and non-U.S. citizens. On August 24, 2020, Complainant filed an EEO complaint alleging that the Agency discriminated against her based on age because throughout her employment she was ineligible, due to being hired after her 45th birthday, to participate in the Mission Germany Retirement Benefit Plan/Defined Benefit Plan (DBP) for LE Staff. 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. 2 2021001196 DBP Part A provides old age, disability, and survivor annuities for non-temporary LE Staff in the plan. All costs were borne by the U.S. Government. Non-temporary LE Staff automatically became participants of DBP Part A following five years of credible Agency service, provided they did not enter U.S. Government service after their 45th birthday. DBP Part B provides additional retirement benefits for non-temporary LE Staff in the plan. To qualify, eligible employees basic salary must exceed a certain formulaic amount. The participant pays 50% of the premium to the private German insurance company. Part B was closed to individuals after their 45th birthday, unless they already completed the required waiting time of five years of Agency service and had not reached their 50th birthday. While DBP benefits were paid by a private German insurance company, the legal entitlement to them remained with the U.S. Government. Effective March 31, 2019, Mission Germany replaced DBP with a Defined Contribution Plan (DCP) for LE Staff. With DCP, the U.S. Government contributed 3%, and the employee could contribute up to the legal limit under German law. DCP had no exclusion on participation based on hire age. Eligible participants included those hired after January 25, 2015 (the date, according to Complainant, that Mission Germany suspended DBP for newly hired LE Staff) and those hired before January 25, 2015, who were not eligible to participate in DBP because of insurance underwriting restrictions. LE Staff already in DBP, and those who both had not completed their five-year waiting period to enter DBP and were hired prior to January 25, 2015, were grandfathered into DBP with no changes to its provisions, unless they waived their entitlement to participate in DBP.2 The Agency dismissed the EEO complaint because Complainant did not initiate EEO counseling within the 45-day time limit of when she reasonably should have suspected discrimination. It found as follows. Complainant should have reasonably suspected discrimination upon her retirement (December 31, 2018) when she learned that she did not qualify for retirement benefits, and again by February 26, 2020, when post leadership issued cable 20 STATE 21066 denying Complainant and similarly situated LE retirees retirement benefits. The Agency found that Complainant had constructive notice of the 45-day time limit because of numerous posted notices on the Agency’s internet site, its intranet site dedicated to employment information, and on Embassy Berlin’s intranet site. The Agency also dismissed the complaint for failure to state a claim for various reasons. The instant appeal followed. On appeal, Complainant argues that when she was hired American Embassy Berlin was in the process of building a new embassy. She writes she was not located in one of official Embassy buildings and because her location did not have access to the Agency and Mission Germany intranet websites she did not have the means to learn of the 45 day time limit. Complainant writes that the above occurred when she worked for Overseas Building Operations (OBO) of the Embassy. 2 The information about DCP was in an Agency appellate submission in EEOC Appeal No. 2021001072. 3 2021001196 The record reflects Complainant stopped working in OBO when she was promoted on April 1, 2007, and she does not argue she was unaware of the 45-day time limit thereafter. Rather, Complainant argues that the Commission should waive the 45-day time limit because the Agency deliberately hindered those injured from becoming aware of the age discrimination and because of the gravity of its offense. Complainant argues that she only formed a reasonable suspicion of age discrimination after extensive consultation with experts and similarly situated LE Staff and retirees, and hence her EEO contact was timely. She also argues that her complaint states a claim. ANALYSIS AND FINDINGS An aggrieved person must seek EEO counseling within 45 days of the date of the alleged discriminatory action, or in the case of a personnel action, within 45 days of the effective date of the action. 29 C.F.R. § 1614.105(a)(1) & .107(a)(2). The agency or the Commission shall extend the 45-day time limit when the individual shows that she was not notified of the time limit and was not otherwise aware of it, or that she did not know and reasonably should not have been known that the discriminatory matter or personnel action occurred. Id., at § .105(a)(2). Because Complainant does not contend she was unaware of the 45-day time limit after moving on from OBO in April 2007, and instead argues the Commission should waive the 45-day time limit because the Agency deliberately hindered those injured from becoming aware of the age discrimination and because of the gravity of the discrimination, we find she was aware of the 45- day time limit sometime before she retired on December 31, 2018. The Commission has adopted a “reasonable suspicion” standard (as opposed to a “supportive facts” standard) to determine when reasonable suspicion is formed. Howard v. Department of the Navy, EEOC Request No. 05970852 (February 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. Complainant argues that she only formed a reasonable suspicion of age discrimination after extensive consultation with experts and similarly situated LE Staff and retirees, so her EEO contact was timely. On appeal, Complainant recounts that when she learned in 2010, that she was excluded from DBP, she approached her supervisor and the Human Resources Officer about “this act of age discrimination….” She writes that she became very proactive, including contacting other LE Staff who were denied access to DBP and assisting in starting a local LE Association in Berlin to discuss their grievances with management. She writes many meetings occurred between the LE Association and management on DBP age discrimination and the delay in creating a replacement after DBP stopped taking new hires in January 2015. 4 2021001196 Complainant argues that after she retired on December 31, 2018, she helped establish a Pension Sub-Committee to meet with management to discuss DBP age discrimination (meaning allow those excluded from DBP due to their age to retroactively join DBP), but on February 26, 2019, via cable, management declined to grandfather them into DBP. Based on this information, we conclude that Complainant had a reasonable suspicion of discrimination years before she initiated EEO counseling on July 21, 2020. Accordingly, the FAD is AFFIRMED.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). 3 Because we find Complainant failed to timely initiate EEO counseling, we need not address the Agency’s dismissal for failure to state a claim. 5 2021001196 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. 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 23, 2021 Date