U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Narcisa D.,1 Complainant, v. Jefferey A. Rosen, Acting Attorney General, Department of Justice (Executive Office of the U.S. Attorneys), Agency. Appeal No. 2021000475 Agency No. USA-2020-01528 DECISION On October 14, 2020, Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from a final Agency decision (FAD) dated September 30, 2020, dismissing her 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 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 for a staffing firm serving the Agency as a Special Security Officer at the Agency’s U.S. Attorney's Office for the Southern District of New York in New York, New York. On July 2, 2020, Complainant filed an equal employment opportunity (EEO) complaint alleging that the Agency discriminated against based on her race (African-American), sex (female), religion (PROS), and age (75) when, on March 17, 2020, her employment was terminated by her staffing firm. 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. 2021000475 2 When Complainant initiated EEO counseling, she completed a pre-complaint form and wrote that the alleged discrimination occurred in March 2020, and that her “Initial Contact Date” and “Date of First EEO contact on this Issue” was June 11, 2020. She reiterated this contact date in her EEO complaint. After Complainant filed her EEO complaint, the Agency’s EEO function sent her an inquiry that recounted the 45-calendar day time limit to initiate EEO counseling after of the alleged discriminatory action, and asked her to explain why she missed this deadline. Complainant responded that on April 23, 2020, the Court Security Officers Union notified her that it would not handle her grievance. This referred to a grievance the union filed on her behalf against the staffing firm on April 12, 2020, for terminating her. By letter dated April 23, 2020, the union informed Complainant that the staffing firm denied the grievance because she was terminated for failing to satisfy weapons qualifications. It explained that because the staffing firm provided proof that she failed to meet the government standards for weapons, she had no avenue in the grievance process because the Collective Bargaining Agreement excludes from the grievance process termination for failure to satisfy government qualifications. The union also advised Complainant that it would not pay for her to hire an attorney to represent her in the EEO process on her removal because she chances of success there were unlikely. In response to the above inquiry about delay, Complainant further explained that after April 23, 2020, she repeatedly reached out to the staffing firm’s human resources department to request another firearm requalification exam, and when she finally got through she was advised there was not solution to her request. She wrote that was when she contacted the Agency EEO office. The Agency dismissed the complaint because Complainant initiated EEO counseling on June 11, 2020, beyond the 45 calendar day time limit and failure to state a claim because she was not an employee of the Agency under common law. The instant appeal followed. On appeal, Complainant argues for the first time that she timely initiated EEO counseling on April 9, 2020. In support, she submits an email sent to her by the Agency’s EEO office on April 9, 2020. In reference to a prior EEO complaint Complainant filed on March 16, 2016,2 which was pending before an EEOC hearings unit, the EEO office advised that because of Covid-19 until further notice EEO staff did not have access to the U.S. Mail, FedEx, any other courier service, or a fax machine, and advised all correspondence should be done via email. Complainant also argues that she was not aware of the 45-day time limit to initiate EEO counseling. In reply to Complainant’s appeal, the Agency argues that Complainant repeatedly indicated below that she initiated EEO counseling on June 11, 2020, explained why she was late, asserts for the first time on appeal that she timely initiated EEO counseling on April 9, 2020, and the documentation she submits to support this relates to a prior EEO complaint. 2 We take administrative notice that Complainant filed a second related EEO complaint on July 6, 2016. See Liz M. v. Justice, EEOC Appeal Nos. 0120162835 and 0120170199 (Feb. 2, 2017). 2021000475 3 The Agency argues that Complainant was aware of the 45-day calendar day time limit as evidenced by her previously bringing an EEO complaint in the administrative EEO complaint process. 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 it. 29 C.F.R. § 1614.105(a)(2). We agree with the Agency’s finding that regarding the complaint before us, Complainant initiated EEO counseling on June 11, 2020. She conceded this repeatedly below, and her appellate contention to the contrary is unsupported by the documentation she provides. To the extent Complainant still argues this, we disagree with her that the 45 day time limit should have been tolled while she tried to resolve things with her staffing firm. As found by the Agency, Complainant is presumed to be aware of the 45 calendar day time limit to initiate EEO counseling because of her prior participation as a complainant in the EEO administrative complaint process. Fuller v. Homeland Security, EEOC Appeal No. 0120100171 (Apr. 16, 2010) (the complainant, as a previous participant in the EEO process, is presumed to be cognizant of the time limitations for making counselor contact). Accordingly, the FAD is AFFIRMED because Complainant failed to timely initiate EEO counseling.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. 3 On appeal, the Agency argues that Complainant’s complaint states a claim because she is not an employee of the Agency under common law. Because we have affirmed the dismissal of Complainant’s complaint for failure to timely initiate EEO counseling, we need not address whether her complaint fails to state a claim. 2021000475 4 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). 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. 2021000475 5 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 January 25, 2021 Date
