[Redacted], Mafalda H., 1 Complainant,v.Lloyd J. Austin III, Secretary, Department of Defense, Agency.

Equal Employment Opportunity Commission

Mar 28, 2022

Appeal No. 2022000316 (E.E.O.C. Mar. 28, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Mafalda H.,1 Complainant, v. Lloyd J. Austin III, Secretary, Department of Defense, Agency. Appeal No. 2022000316 Agency No. 2021-WHSPFPA-060 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's decision dated September 29, 2021, dismissing her 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., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Police Officer, AD- 0083-07 at the Agency’s Pentagon Federal Protection Agency in Washington, D.C. On August 6, 2021, Complainant filed a formal complaint alleging that the Agency subjected her to discrimination on the bases of sex (female), age, and reprisal for prior protected EEO activity when: 1. On October 7, 2020, the 5th Platoon Commander denied Complainant the opportunity to have a union representative present during a meeting. 2. On February 21, 2021, Complainant was placed on light duty. 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. 2022000316 2 3. On May 3, 2019, Complainant received a rating of 3 on her annual performance review. 4. On June 30, 2021, Complainant learned that she was denied retirement credentials.2 The Agency dismissed the complaint pursuant to 29 C.F.R. § 1614.107 for untimely EEO counselor contact, failure to address claims with an EEO counselor, raising a claim that was previously raised in another forum, and failure to provide relevant information. The instant appeal followed. ANALYSIS AND FINDINGS Claims 1, 2, and 3 The Agency dismissed claims 1, 2 and 3 for untimely EEO counselor contact. EEOC Regulation 29 C.F.R. § 1614.105(a)(1) requires that complaints of discrimination should be brought to the attention of the EEO 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. The alleged dates of discrimination in these claims were May 30, 2019; October 7, 2020 and February 21, 2021. However, the record shows that Complainant did not contact the EEO counselor’s office until July 6, 2021, which is beyond the 45-day time limit. On appeal, Complainant alleges that her initial counselor contact was June 2, 2021, not July 6, 2021. Assuming arguendo, that this is true, her counselor contact is still untimely. Complainant has presented no other arguments on appeal or evidence to warrant an extension of the time limit for initiating EEO contact. Therefore, we find that claims 1, 2 and 3 were properly dismissed as untimely. Claim 4 EEOC Regulation 29 C.F.R.§ 1614. 107(a)(7) provides that an agency shall dismiss a claim where the agency has provided the complainant with a written request to provide relevant information, and the complainant fails to respond to the request within 15 days of its receipt or the complainant’s response does not address the agency's request, provided that the request included a notice of proposed dismissal. 2 Although this claim was not listed in the Agency’s final decision, it was addressed in the body of the decision and discussed during counseling. 2022000316 3 The record indicates that on August 23, 2021, the EEO Counselor sent Complainant a letter requesting that she provide information for processing her complaint. The letter included a notice that failure to respond within 15 days of receipt of the request would result in the dismissal of her claim. On September 9, 2021 Complainant responded to the request but did provide the requested information or specify how she was allegedly discriminated against. Instead, she attached documents unrelated to claim 4. The Commission finds that the Agency’s dismissal of claim 4 was proper because Complainant failed to provide information that was required to process the claim. CONCLUSION Upon careful review of the evidence of record, as well as the parties’ arguments on appeal, we conclude that the dismissal of the complaint was proper. The Agency’s final decision 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. 2022000316 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. 2022000316 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 March 28, 2022 Date