[Redacted], McKenzie L., 1 Complainant,v.Lloyd J. Austin III, Secretary, Department of Defense (Defense Logistics Agency), Agency.

Equal Employment Opportunity Commission

Sep 29, 2021

Appeal No. 2021003894 (E.E.O.C. Sep. 29, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 McKenzie L.,1 Complainant, v. Lloyd J. Austin III, Secretary, Department of Defense (Defense Logistics Agency), Agency. Appeal No. 2021003894 Agency No. DLAN-21-0056 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's final decision dated May 26, 2021, dismissing a formal 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 Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. BACKGROUND During the period at issue, Complainant worked for the Agency as a Training Facilitator, GS-11, in New Cumberland, Pennsylvania. On May 14, 2021, Complainant filed a formal EEO complaint alleging that the Agency subjected her to discrimination on the bases of sex, religion, disability, and in reprisal for prior protected EEO activity. The Agency determined that the formal complaint was comprised of the following claim: On December 1, 2020, the DDSP [Defense Depot Susquehanna, Pennsylvania] Commander notified Complainant that his decision regarding her union grievance (Grievance Number 2020-132) was final and he would not rescind the 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. 2021003894 2 Agency decision to suspend her without pay for her second offense of misconduct - Conduct Unbecoming a Federal Employee. She served the suspension without pay from December 6 to 8, 2020. Complainant alleges the investigation that was conducted regarding events on February 6, 2020, and March 11, 2020, was faulty and led to the suspension action. On April 1, 2021, the Agency issued Complainant the Notice of Right to File a Formal Complaint (Notice), informing Complainant that she had 15-days from receipt of the Notice to file her formal complaint. The Notice was received by Complainant on April 9, 2021. Complainant filed her formal complaint on May 14, 2021. On May 26, 2021, the Agency issued a final decision dismissing the formal complaint: (1) pursuant to 29 C.F.R. § 1614.107(a)(2), for failure to comply with the applicable time limits, and (2) pursuant 29 C.F.R. § 1614.107(a)(4), where the complainant has elected to raise the matter in a negotiated grievance procedure that permits allegations of discrimination. The instant appeal followed. On appeal, Complainant acknowledges that her EEO formal complaint was untimely. Complainant argues, however, that the time limit for filing her formal complaint should be equitably tolled because she was tasked with caring for her terminally ill father. Additionally, Complainant asserts that the investigation into the events on February 6 and March 11, 2020, was faulty and that she is attacking the investigation and not the misconduct that was the basis of the suspension. Complainant argues that the investigation was conducted in a discriminatory and retaliatory manner. ANALYSIS AND FINDINGS Dismissal for Untimely Filing of Complaint 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 notice of the right to do so. Here, the record establishes the Notice was received on April 9, 2021, but Complainant’s formal complaint, filed on May 14, 2021, was more than fifteen days after the limitation period set forth in the regulations. Complainant has not presented adequate justification for extending the limitation period beyond fifteen days. On appeal, Complainant acknowledges that her formal complaint was filed untimely. However, she requests that her untimely filing be excused because she was the sole caretaker for her terminally ill father. When a complainant claims that a medical condition prevents them from meeting a particular filing deadline, we have held that in order to justify an untimely filing, the complainant must be so incapacitated by the condition as to render her unable to make a timely filing. See Zelmer v. U.S. Postal Serv., EEOC Request No. 05890164 (Mar. 8, 1989). 2021003894 3 Here, Complainant avers that her circumstances made her unable to perform Agency tasks, or act on Agency emails. However, Complainant has not provided any evidence to support her claim that she was so incapacitated, during the applicable fifteen-day period, as to prevent her from timely filing the instant complaint. While we sympathize with Complainant’s asserted circumstances, she has not provided adequate justification for excusing her untimely filing. Moreover, even if we were to excuse the untimely filing, the alternative dismissal grounds, discussed below, was proper. Dismissal - Election of Grievance Process 29 C.F.R. §1614.301 requires that where a person is employed by an agency subject to 5 U.S.C. § 7121(d) and is covered by a collective bargaining agreement that permits allegations of discrimination to be raised in the negotiated grievance procedure, an election must be made to proceed under either the negotiated grievance procedure or the EEO complaint procedure but not both. An aggrieved employee who files a grievance in writing with an agency, whose negotiated agreement permits the inclusion of allegations of discrimination, may not thereafter file an EEO complaint on the same matter, irrespective of whether the agency has informed the individual of the need to elect, or whether the grievance actually raised allegations of discrimination. 29 C.F.R. §1614.107(a)(4) provides that the agency shall dismiss a complaint where the complainant has elected to pursue the allegations under a negotiated grievance procedure. Here, the Agency’s relevant negotiated grievance process permits allegations of discrimination (Article 36, Section 5). Complainant filed a grievance over the proposed 3-day suspension on November 10, 2020, prior to filing her formal EEO complaint on May 14, 2021. As a result of her filing a grievance, Complainant’s suspension was upheld and the DDPS Commander notified Complainant that her suspension would not be rescinded. We therefore conclude that Complainant elected to pursue her challenge to her suspension in the grievance process first and, as such, the dismissal of her EEO complaint on the same matter by the Agency was proper in accordance with 29 C.F.R. § 1614.107(a)(4). CONCLUSION The Agency’s final decision to dismiss the formal complaint for the reasons discussed above is AFFIRMED. 2021003894 4 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. 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). 2021003894 5 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 September 29, 2021 Date