[Redacted], Neville B, 1 Complainant,v.Thomas W. Harker, Acting Secretary, Department of the Navy, Agency.

Equal Employment Opportunity Commission

Feb 23, 2021

Appeal No. 2021001167 (E.E.O.C. Feb. 23, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Neville B,1 Complainant, v. Thomas W. Harker, Acting Secretary, Department of the Navy, Agency. Appeal No. 2021001167 Agency No. DON-19-40085-04210 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's final decision dated November 6, 2020, dismissing a formal 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. BACKGROUND During the period at issue, Complainant worked as an Engineering Technician, GS-11, at the Agency’s Naval Facilities Engineering Systems Command Mid-Atlantic in Norfolk, Virginia. According to the Agency, on October 9, 2020, Complainant filed a formal EEO complaint claiming that he was discriminated against based on his race and in reprisal for prior protected EEO activity. On November 6, 2020, the Agency issued the instant final decision. The Agency dismissed the formal complaint, pursuant to 29 C.F.R. § 1614.107(a)(2), finding that the formal complaint was untimely filed. The Agency reasoned that Complainant received the Notice of Right to File a Formal Complaint (Notice) on September 4, 2019. The Agency found, however, that Complainant did not file his formal complaint until October 9, 2020, which it found to be well beyond the 15-day filing period. 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. 2021001167 2 The Agency also dismissed the formal complaint, pursuant to 29 C.F.R. § 1614.107(a)(8), finding that Complainant has alleged dissatisfaction with the processing of a previously filed complaint. The instant appeal followed. 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 notice of the right to do so. Here, we find that Complainant’s formal complaint was untimely. Documentation in the record reflects that on September 4, 2019, the EEO Counselor emailed Complainant the Notice. The record further reflects that in the email, the EEO Counselor notified Complainant of the filing deadline to submit his formal complaint. Specifically, the email stated, in pertinent part, the following: If you file a complaint, it must be in writing and filed in person, by mail, or facsimile, within 15 calendar days of receipt of this Notice. If you do not file a complaint within this time, your complaint may be dismissed as untimely. If you do file a discrimination complaint, you will receive a written notice of receipt of the same. Additionally, the EEO Counselor further stated in the email the following: I have reached out to you over email and tried contacting you by telephone after the initial counseling session and I had no luck. After [I] conducted your counseling session on August 22, 2019, you stated that you needed to seek counsel to determine who you wanted to resolve your complaint. You still have yet to let me know how you wanted to resolve your complaint. It has been 30 calendar days since you initially contacted our office and I am required to issue you this notice. Since the matter you brought to our office has not been resolved, you are now entitled to file a discrimination complaint bases on the counseling issue and basis. The record also reflects that Complainant responded to the email on September 5, 2019, and confirmed receipt. In his September 5, 2019 response, Complainant disputed that the EEO Counselor had previously called him regarding a follow-up to his initial counseling session. Nevertheless, Complainant acknowledged receipt of the notice and had 15 days, or until September 20, 2019, to timely file the formal complaint. 2021001167 3 The record reflects that Complainant later emailed the EEO Counselor on September 10, 2019. Documentation in the record reflects that Complainant did not complete or submit his formal complaint in his September 10, 2019 response. Rather, Complainant submitted the completed pre-complaint documents which the EEO Counselor had asked him to complete in August 2019. These documents included the following matters: a Notice of Aggrieved Person’s Rights and Responsibilities, a Request to Extend the Counseling Period, and a Pre-Complaint Election form. Complainant completed and signed all three documents on September 10, 2019. Complainant indicated, on the Request to Extend the Counseling Period, an intent to extend the counseling period for an additional 10 days from September 10, 2019 even though the EEO Counselor had indicated in the September 4, 2019 email that the pre-complaint counseling period had concluded. Although the record indicates that the EEO Counselor responded on September 11, 2019, confirming receipt of Complainant’s September 10, 2019 submission, this acknowledgement was not an acknowledgement that Complainant had submitted a formal complaint. This acknowledgement, moreover, was not an indication that the EEO Counselor was granting Complainant’s request for an extension of the pre-counseling period which had closed at the time the EEO Counselor emailed Complainant the Notice on September 4, 2019. The record indicates that on January 13, 2020, the EEO Counselor responded to Complainant’s January 11, 2020 inquiry and informed him that she had no record of Complainant’s formal complaint. The EEO Counselor confirmed that Complainant had only submitted the pre- complaint documents needed during informal counseling, and she further confirmed that she had previously provided Complainant the process for timely filing a formal complaint. Nine months later, on October 9, 2020, Complainant, through counsel, filed the instant formal complaint.2 Complainant’s filing was over 300 days beyond the 15-day limitation period that ended on September 20, 2019. It is unclear why Complainant waited an additional nine months to file his formal complaint after the EEO Counselor confirmed on January 13, 2020, that he had not filed a formal complaint. Complainant has not presented adequate justification for extending the limitation period beyond fifteen days. Because we find that the Agency properly dismissed Complainant’s complaint on the grounds of untimely filing, we need to address the Agency’s alternative grounds for dismissal of the formal complaint. The Agency’s final decision to dismiss the formal complaint on the grounds of untimely filing is AFFIRMED. 2 The record indicates that the EEO Counselor confirmed receipt on October 14, 2020 and requested that Complainant use the Agency’s formal complaint form which Complainant subsequently filed and later amended. Nevertheless, the Agency determined that Complainant filed the formal complaint at issue on October 9, 2020. 2021001167 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). 2021001167 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 February 23, 2021 Date