[Redacted], Marlin B., 1 Complainant,v.William P. Barr, Attorney General, Department of Justice (U.S. Marshals Service), Agency.

Equal Employment Opportunity Commission

Jan 8, 2021

Appeal No. 2020005301 (E.E.O.C. Jan. 8, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Marlin B.,1 Complainant, v. William P. Barr, Attorney General, Department of Justice (U.S. Marshals Service), Agency. Appeal No. 2020005301 Agency No. USM-2020-00695 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's decision dated August 6, 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 a retired Deputy U.S. Marshal, who had worked at the Agency’s Southern District of Illinois facility. On February 18, 2020, Complainant filed a formal complaint alleging the Agency subjected him to discrimination on the bases of disability and reprisal when, on January 23, 2020, he was denied a retirement badge, credentials, and a Law Enforcement Officers Safety Act (LEOSA) identification card. The Agency dismissed the complaint, pursuant to 29 C.F.R. § 1614.107(a)(2), for untimely EEO Counselor contact. The instant appeal followed. 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. 2020005301 2 ANALYSIS AND FINDINGS The regulation set forth at 29 C.F.R. § 1614.107(a)(2) states, in pertinent part, that an agency shall dismiss a complaint which fails to comply with the applicable time limits contained in 29 C.F.R. § 1614.106, which, in turn, requires the filing of a formal complaint within fifteen (15) days of receiving the notice of the right to do so. In his formal complaint, Complainant states, “[o]n July 12, 2017, I was informed by [named Associate General Counsel) I would not receive my retirement badge and credentials for Law Enforcement Officials Safety Act Identification card because I had not been found to be separated in good standing.” Complainant also stated that in August 2019, he was again informed that it had been found in 2017 that he did not separate from the Agency in good standing. Complainant requested reconsideration, and in January 2020 he was again told it was determined that he was not in good standing with the Agency when he was forced into a medical separation. Complainant previously filed EEO complaints in 2015 and 2017. Thus, he is presumed to know the time limits for filing an EEO complaint. Accordingly, we find that Complainant knew in July 2017 that he would not receive his retirement badge and LEOSA credentials, but Complainant did not initiate contact with an EEO Counselor until January 23, 2020, which is beyond the forty-five (45) day limitation period. To the extent Complainant used internal processes and sought reconsideration of the decision, the Commission has consistently held that the utilization of agency procedures, union grievances, and other remedial processes 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). On appeal, Complainant has presented no persuasive arguments or evidence warranting an extension of the time limit for initiating EEO Counselor contact. Accordingly, the Agency's final decision dismissing Complainant's complaint is AFFIRMED. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0620) The Commission may, in its discretion, reconsider this appellate decision if the 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. 2020005301 3 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, 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. 2020005301 4 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 January 8 , 2021 Date