[Redacted], Nick S.,1 Complainant,v.Gina M. Raimondo, Secretary, Department of Commerce (International Trade Administration), Agency.

Equal Employment Opportunity Commission

Jul 27, 2021

Appeal No. 2021002469 (E.E.O.C. Jul. 27, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Nick S.,1 Complainant, v. Gina M. Raimondo, Secretary, Department of Commerce (International Trade Administration), Agency. Appeal No. 2021002469 Agency No. 55-2021-00249 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's decision dated February 18, 2021 (FAD), dismissing his 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. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Foreign Commercial Service Officer, FS-03, at the Agency’s United Status Consulate General facility in Osaka, Japan. On February 3, 2021, Complainant filed a formal complaint alleging that the Agency subjected him to discrimination and harassment constituting a discriminatory hostile work environment on the bases of race (Caucasian), sex (male), color, and reprisal during his time at the Osaka Consulate from 2016-2018 when: 1. His supervisor (Supervisor) gave him unfavorable Employee Evaluation reports, as a result of which he was denied tenure within the five (5)-year window as required for a Foreign Service Officer and faced potential removal from the Foreign Service. 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. 2021002469 2 2. Once Supervisor became aware that Complainant had reported her behavior to the Agency’s Office of Foreign Service Human Capital - Labor Relations Department, Supervisor escalated her discriminatory and retaliatory treatment. 3. Despite reporting Supervisor’s behavior to the Agency’s Office of Foreign Service Human Capital - Labor Relations Department, no action was taken to address Supervisor’s behavior. As a result of the Agency’s failure to address Supervisor’s behavior and take swift action to offset the damage done, Complainant says that he was left with no realistic choice in the short term but to leave the Foreign Service in order to ensure secure employment and focus on his personal health and wellbeing. Complainant alleged that “[t]he impact of [Supervisor’s] actions and the Agency’s failure to respond continue to this day, and have cost me my foreign service career.” (Complaint File, p. 4). The Agency dismissed claims 1 through 3 for untimely EEO counseling contact pursuant to 29 C.F.R. § 1614.107(a)(2). The Agency noted dismissal was appropriate “pursuant to the doctrine of laches based upon the time which passed between the challenged incidents and Complainant’s pursuit of these concerns.” (FAD, p. 8). The record reflects Complainant initially contacted the Director of Client Services & Resolution Division (OCR Director) in the Agency’s Office of Civil Rights on April 5, 2018. He stated that he had recently undergone “the required EEO/Harassment training” and he had questions and wished “to learn a little but more about the process of reporting and your role at DOC.” (Complaint File, p. 165). The OCR Director responded the following day with an attempt to schedule a time to talk with Complainant. On April 18, 2018, Complainant emailed the OCR Director stating he “would like to talk about an ongoing harassment issue.” He described himself as a “mandated reporter”. (Complaint File, p. 164). Complainant spoke with the OCR Director on April 19, 2018, after which she emailed him a link to the most recent Secretarial EEO Policy statement, noting it contained a link to the quick reference guide they discussed where Complainant could find the specific harassment guidance. (Complaint File, p. 162). A year later, on May 9, 2019, Complainant contacted the OCR Director again stating he wanted to reconnect as he now had “additional information.” (Complaint File, p. 162). Complainant and the OCR Director continued to communicate, and then, on October 10, 2019, Complainant emailed the OCR Director stating he: would like to hereby file an EEO against my previous supervisor, [Supervisor], for retaliatory and hostile actions targeted at me, including a toxic work environment defined by bullying, intentional divisiveness, and manipulative behaviour - as well as retaliation for my participation in the Grievance/OFSHR Labor relations process. These activities falls under the EEO umbrella, and I would very much appreciate your guidance on this matter. I served as a Foreign Commercial Service Officer in Osaka Japan from 2017-2019; however, I was just 2021002469 3 very recently made aware of new information and the discovery of actions and behaviour by [Supervisor] that has adversely impacted my career….Kindly let me know if this serves as official notice or what additional information you require to advance this EEO process. (Complaint File, pp. 151-152). The OCR Director responded that same day stating she would use Complainant’s email as his “intent to move forward with the informal EEO complaint.” However, she requested Complainant “provide the specifics of your claims, including dates, actions taken, as well as the EEO bases for the claims (e.g. race, gender, age, etc)….As soon as we obtain this information, we will enter you into our system and assign an EEO Counselor to your case.” (Complaint File, p. 152). Over a year after that, Complainant contacted the OCR Director on December 10, 2020 referencing the October 2019 correspondence and stating he wanted to move “from the informal to formal EEO process.” (Complaint File, pp. 150-151). The OCR Director responded the following day indicating that she had assumed Complainant did not want to pursue an informal EEO complaint in October 2019 because Complainant had not provided any additional follow-up at that time. She noted she would assign an EEO Counselor if Complainant intended to now pursue his claim, but that there was a possibility the claim would “be dismissed as untimely since you did not formally initiate a complaint within 45 days of any action(s) you believe to be discriminatory.” (Complaint File, pp. 149-150). Complainant responded that same day indicating he did wish to move forward. He stated he believed the previous conversations and his October 2019 email were a placeholder that would suffice for notification. (Complaint File, p. 149). Complainant was assigned to an EEO Counselor that day. His concerns were not resolved during the EEO Counseling process and Complainant received his Notice of Right to File on January 29, 2021. He timely filed a formal complaint on February 3, 2021. As stated above, the Agency dismissed Complainant’s formal complaint on February 18, 2021.2 Complainant now appeals the FAD dismissing his claims. On appeal, Complaint contends he thought he did timely initiate the process and that the need to formally pursue his claim is a nuance that was not made clear to him and should not be applicable to those in overseas postings. He further states he was not aware of the full extent of the discrimination at that time, and that he feared further retaliation if he pursued his claim at that time. Complainant asserts that he attempted to resolve the matter through other means, including contacting others at his Agency and pursuing the grievance process. The Agency contends on appeal that the FAD should be affirmed because Complainant failed to follow the applicable regulations and otherwise failed to act with due diligence. 2 The Agency initially issued its final decision on February 17, 2021, but it subsequently issued a Corrected Final Agency Decision on February 18, 2021 to correct an error in identifying the person who completed the Counselor’s Report. The February 17, 2021 decision was rescinded. 2021002469 4 ANALYSIS AND FINDINGS EEOC Regulation 29 C.F.R. §1614.105(a)(1) provides that an aggrieved person must initiate contact with an 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. EEOC Regulation 29 C.F.R. §1614.105(a)(2) allows the Agency or the Commission to extend the time limit if Complainant can establish that Complainant was not aware of the time limit, that Complainant did not know and reasonably should not have known that the discriminatory matter or personnel action occurred, that despite due diligence complainant was prevented by circumstances beyond her control from contacting the EEO Counselor within the time limit, or for other reasons considered sufficient by the Agency or Commission. The Commission has adopted a “reasonable suspicion” standard (as opposed to a “supportive facts” standard) to determine when the forty-five (45) day limitation period is triggered. See Howard v. Dep’t of the Navy, EEOC Request No. 05970852 (February 11, 1999). Thus, the time limitation is not triggered until a complainant reasonably suspects discrimination, but before all the facts that support a charge of discrimination have become apparent. A complainant satisfies the requirement of counselor contact by contacting an agency official “logically connected” with the EEO process and by exhibiting an intent to begin the EEO process. See Jayna A. v. U.S. Postal Serv., EEOC Appeal No. 2019000179 (Nov. 29, 2018), citing Cristantiello v. Dep’t of the Army, EEOC Appeal No. 01992817 (Dec. 19, 2000), Cox v. Dep’t of Hous. and Urban Dev., EEOC Request No. 05980083 (July 30, 1998); Allen v. U.S. Postal Serv., EEOC Request No. 05950933 (July 9, 1996); Jones v. Dep't of the Army, EEOC Request No. 05900435 (Sept. 7, 1990). EEOC Regulation 29 C.F.R. § 1614.107(a)(2) provides for the dismissal of complaints where the complainant did not initiate contact with an EEO Counselor within 45 days of the date of the matter alleged to be discriminatory or, in the case of a personnel action, within 45 days of the effective date of the action. The Commission also has consistently held that a complainant must act with due diligence in the pursuit of his EEO claim or the doctrine of laches may apply. See O'Dell v. Dep't of Health and Human Services, EEOC Request No. 05901130 (December 27, 1990). The doctrine of laches is an equitable remedy under which an individual's failure to pursue diligently his course of action could bar his claim. Id. Here, although Complainant may have contacted the Agency’s Office of Civil Rights in April 2018, Complainant did not express an intent to pursue the EEO process until over a year later in October 2019. Then, he failed to provide requested follow up information in October 2019 and did not reach out to the Office of Civil Rights again until over another year later in December 2020. This reflects that while he may have stated an intent to pursue the EEO process in October 2019, he lacked the actual intent to do so until December 2020. This is also consistent with Complainant’s own statements that he thought his earlier contact served as a “place marker.” (Complaint File, p. 149). 2021002469 5 Complainant contends he diligently pursued his complaints to management and through the grievance process. As noted by the Agency in its brief, “the Commission has consistently held that internal appeals or informal efforts to challenge an agency's adverse action do not toll the running of the time limit to contact an EEO Counselor. See Hosford v. Department of Veterans Affairs, EEOC Request No. 05890038 (June 9, 1989); Miller v. United States Postal Service, EEOC Request No. 05880835 (February 2, 1989).” Mike G. v. Dep’t of the Army, EEOC Request No. 0120151129 (March 30, 2016). The Agency also correctly noted “the Commission has repeatedly held that mere fear of reprisal is an insufficient justification for extending the time limitation for contacting an EEO Counselor. See Duncan v. Dep't of Veterans Affairs, EEOC Request No. 05970315 (July 10, 1998); Kovarik v. Dep't of Def., EEOC Request No. 05930898 (Dec. 9, 1993).” Taryn S. v. Dep’t of the Army, EEOC Request No. 2020003229 (October 13, 2020). We are not persuaded by Complainant’s argument that these cases use “loose” language. Complainant did not exhibit actual intent to pursue the EEO process until December 2020, which is well more than 45 days after the latest alleged acts by his Supervisor. Although Complainant contends the effects of Supervisor’s acts are ongoing, it is clear he knew or reasonably should have known about them much earlier than December 2020 based on his earlier outreach to the OCR Director in 2018 and 2019 and his statements that he contacted other management officials and filed grievances at that time. Thus, the Agency correctly dismissed Complainant’s claims for untimely counselor contact pursuant to 29 C.F.R. § 1614.107(a)(2). Although Complainant states he was unaware his contact with the OCR Director had not preserved his right to file an EEO complaint and that he explored other avenues for relief, it is clear he did not diligently or timely pursue his claims of discrimination, harassment, and hostile work environment through the EEO process and thus the doctrine of laches should apply. In every instance, he waited a year between bursts of contacts with the Agency’s OCR Director. Complainant also notes that his mental health was impacted, but we have consistently held, in cases involving physical or mental health difficulties, that an extension is warranted only where an individual is so incapacitated by his condition that he is unable to meet the regulatory time limits. See Davis v. U.S. Postal Serv., EEOC Request No. 05980475 (August 6, 1998). Evidence that a complainant has sought treatment does not, without evidence of incapacity, justify an extension of time. See Galbreath v. Dep’t of the Navy, EEOC Request No. 05980927 (Nov. 4, 1999) (evidence that complainant was under great mental stress, and received an evaluation/treatment, did not render the complainant incapacitated). Complainant has not provided sufficient justification to warrant tolling of the time limits. His EEO Counselor contact was not timely. As such, the Agency correctly dismissed the complaint. CONCLUSION The Agency's final decision dismissing the formal complaint is AFFIRMED for the reasons discussed above. 2021002469 6 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). 2021002469 7 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 July 27, 2021 Date