[Redacted], Odis H., 1 Complainant,v.Carlos Del Toro, Secretary, Department of the Navy, Agency.

Equal Employment Opportunity Commission

Mar 7, 2022

Appeal No. 2022000690 (E.E.O.C. Mar. 7, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Odis H.,1 Complainant, v. Carlos Del Toro, Secretary, Department of the Navy, Agency. Appeal No. 2022000690 Agency No. DON 21-32253-00847 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's decision dated October 15, 2021, 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., 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 worked as a Shipfitter, WG- 3820-05 at the Agency’s Pearl Harbor Naval Shipyard in Hawaii. On September 15, 2021, Complainant filed a formal complaint alleging that the Agency subjected him to discrimination on the bases of disability and reprisal for prior protected EEO activity when: 1. On April 7, 2020 Complainant was issued a letter and attached memo dated March 26, 2020 which gave the intent to revoke his security clearance eligibility. 2. On May 4, 2020, the Production Resources Operations Manager terminated Complainant’s employment during his probationary 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. 2022000690 2 In a final decision dated October 15, 2021, the Agency dismissed Complainant's complaint on the basis that it was initiated by untimely EEO counselor contact. The Agency noted that Complainant waited more than twelve months to raise the issue with the EEO Counselor. Complainant submitted a statement on appeal, arguing that the 45-day time limit should be extended because he “was misinformed of the filing process and which package to submit.” 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 45 days of the date of the matter alleged to be discriminatory or within 45 days of the effective date of a personnel action. This period may be extended when the complainant shows that he was not notified of the time limits and was not otherwise aware of them; that he did not know and reasonably should not have known that the discriminatory matter or personnel action occurred; that despite due diligence he was prevented by circumstances beyond her control from contacting an EEO Counselor within the time limits; or for other reasons considered sufficient by the agency or the Commission. 29 C.F.R. § 1614.105(a)(2). It is well settled that EEO counselor contact for purposes of tolling the 45-day time limit requires at a minimum that the complainant intend to pursue EEO counseling when he initiates EEO contact. Snyder v. Department of Defense, EEOC No. 05901061 (November 1, 1990). Here, email correspondence shows that Complainant initially contacted the EEO office about his termination on May 7, 2020. On May 8, 2020, Complainant was provided the EEO forms and, on May 11, 2020, Complainant and the EEO Counselor discussed and reviewed the EEO forms and Complainant indicated that he was unsure if he wanted to pursue an informal complaint. The EEO Counselor requested a response by May 14, 2020, as to whether he wanted to pursue an informal complaint and provided Complainant a pre-complaint election form. Since the EEO Counselor did not hear from Complainant, she emailed him again on May 18, 2020, requesting a response by May 20, 2020. An email dated May 22, 2020, indicates that, as of that date, the EEO Counselor had not received a response or the EEO pre-complaint forms, there was insufficient information to process his complaint, and Complainant’s EEO contact was closed due to failure to pursue counseling. The email advises that Complainant “must seek counseling on alleged discriminatory matters within 45 calendar days of the incident or personnel action.” Thus, we find the record establishes that, although Complainant contacted the EEO office on May 7, 2020, he did not indicate an intent to pursue the EEO process at that time. The record shows that Complainant did not contact the EEO office intending to file an EEO complaint regarding his termination until June 16, 2021, which is over a year after the effective date of his termination. 2022000690 3 On appeal, Complainant argues that the 45-day time limit should be extended because he was misinformed about the filing process and which package to submit. He asserts that he was advised to file with DOD CAF and he tried calling to follow up on May 18, 2020, but received no response. He asserts that had he known what was going on, he would have continued the EEO process. We have considered his arguments and find Complainant has failed to provide sufficient justification for extending or tolling the time limit. Accordingly, the Agency's final decision dismissing Complainant's complaint is AFFIRMED. 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. 2022000690 4 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. 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 March 7, 2022 Date