[Redacted], Patrick S., 1 Complainant,v.Lloyd J. Austin III, Secretary, Department of Defense (Defense Intelligence Agency), Agency.

Equal Employment Opportunity Commission

Nov 29, 2021

Appeal No. 2021005128 (E.E.O.C. Nov. 29, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Patrick S.,1 Complainant, v. Lloyd J. Austin III, Secretary, Department of Defense (Defense Intelligence Agency), Agency. Appeal No. 2021005128 Agency No. DIA-2021-00013 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's final decision dated May 4, 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. BACKGROUND During the relevant time, Complainant worked as an Intelligence Planner at the Agency’s Defense Intelligence Agency in Washington D.C. On January 26, 2021, Complainant initiated EEO Counselor contact. Informal efforts to resolve his concerns were unsuccessful. On March 9, 2021, Complainant filed the instant formal complaint. Complainant alleged that the Agency subjected him to unlawful retaliation for prior EEO activity when: 1. On November 27, 2019, after he made several requests, the EEO Program Manager failed to include the following documents to his complaint file: his Rebuttal to RMO Declarations Made Under Penalty of Perjury; and his Appeal to the Agency Director of 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. 2021005128 2 his complaint with docket number, DIA-2019-00028/EEOC 510-2020-00047X. 2. On April 14, 2020, via a Freedom of Information Act request, he discovered Major initiated a 15-6 security investigation against him in 2017, based on the recommendation of the Supervisory Intelligence Officer.2 On May 4, 2021, the Agency issued a final decision dismissing claims 1 and 2 for untimely EEO Counselor contact, pursuant to 29 C.F.R. §1614.107(a)(2) and dismissed claim 1 for failure to state a claim pursuant to 29 C.F.R. §1614.107(a)(1). The instant appeal followed. ANALYSIS AND FINDINGS Untimely EEO Counselor contact: Claims 1 and 2 The regulation set forth at 29 C.F.R. § 1614.107(a)(2) states, in relevant period, that the agency shall dismiss a complaint or a portion of a complaint that fails to comply with the applicable time limits contained in 29 C.F.R. § 1614.105. Under 29 C.F.R. § 1614.105(a)(1), an aggrieved person must initiate contact with an EEO Counselor within 45 days of the date of the matter alleged to be discriminatory, the effective date of an alleged discriminatory personnel action or the date that the aggrieved person knew or reasonably should have known of the discriminatory event or personnel action. The record reflects that claims 1 and 2 occurred on November 27, 2019 and April 14, 2020, respectively. The record also discloses that Complainant did not initiate contact with an EEO Counselor on these matters until January 26, 2021, which is beyond the 45-day limitation period. Accordingly, the Agency’s dismissal of the complaint for untimely EEO counselor contact is affirmed. Since we are affirming the Agency’s dismissal on the entire complaint, there is no need for us to address its alternative grounds for dismissal.3 2 A 15-6 investigation is an administrative fact-finding investigation initiated pursuant to Army Regulation 15-6. 3 However, we note for Complainant that allegations of dissatisfaction with the processing of a previously filed EEO complaint do not create an independent claim of retaliation and cannot be made the subject of a new complaint. See 29 C.F.R. § 1614.107(a)(8). Complainant should raise these concerns during the adjudication of that underlying previous complaint. 2021005128 3 CONCLUSION The Agency’s final decision dismissing the instant formal 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. 2021005128 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 November 29, 2021 Date