U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Rachel L.,1 Complainant, v. Alejandro N. Mayorkas, Secretary, Department of Homeland Security (Federal Emergency Management Agency), Agency. Appeal No. 2021003339 Agency No. HS-FEMA-02345-2020 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's final decision dated May 19, 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 period at issue, Complainant worked as a Deputy Regional Administrator at the Agency’s Headquarters in Washington, D.C. On August 20, 2020, Complainant initiated EEO Counselor contact. Informal efforts at resolution were not successful. On December 1, 2020, Complainant filed a formal complaint claiming that the Agency discriminated against her based on race and sex, as well as unlawful retaliation for whistleblowing, when: 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. 2021003339 2 1. On April 11, 2018, the FEMA Chief of Staff, Office of the Administrator (OS), issued Complainant a directed reassignment to the position of Deputy Regional Administrator, Region 2, effective September 2018, and her Deputy Regional Administrator, Region 9 position was offered to a white male SES without competition. Complainant was not afforded a Permanent Change of Station package, but instead was given a relocation bonus that required signing a two- year commitment to work for DHS. 2. In and around July 2018, the COS failed to request protection for Complainant when she received threats while deployed to Puerto Rico, and the FEMA Office of the Chief Security Officer (OCSO) failed to investigate the threats against Complainant. 3. On May 13, 2019, the Personnel Security Division (PSD), OCSO, suspended Complainant’s national security eligibility. Others outside of Complainant’s protected class did not have their national security eligibility suspended despite being under investigation. 4. On August 1, 2019, the COS issued Complainant an indefinite suspension instead of allowing her to continue to perform her duties, as he had allowed others outside of her protected class to serve as Deputy Regional Administrators without a security clearance. 5. In and around September 2019, the COS and other FEMA managers failed to protect the privacy of Complainant’s personnel information, permitting news media to report specific information concerning her personnel status. 6. On or about September 27, 2019, a manager sent an email communication to a FEMA headquarters distribution list that contained information regarding Complainant these recipients did not have a need to know. 7. On October 8, 2019, the Director of PSD, OCSO, issued Complainant a Notice of Determination to Revoke National Security Eligibility. 8. On July 10, 2020, the COS removed Complainant from her position as Deputy Regional Administrator, Region 2, ES-0343-00. In its May 19, 2021 final decision, the Agency dismissed the formal complaint on several grounds. First, the Agency dismissed the basis of reprisal for claims 3 and 7, pursuant to 29 C.F.R. § 1614.107(a)(1), for failure to state a claim within the scope of Title VII. The Agency determined that the prohibition against reprisal for whistleblowing is covered by 5 U.S.C. § 2302(b)(8) and is not within the scope of Title VII. 2021003339 3 Second, the Agency dismissed claim 8, pursuant to 29 C.F.R. § 1614.107(a)(1), finding that Complainant raised the same matter in another complaint, identified as Agency No. HS-FEMA- 02052-2020, which was pending before the Agency. Third, the Agency dismissed claims 1 through 7, pursuant to 29 C.F.R. § 1614.107(a)(2) for untimely EEO Counselor contact. The Agency determined that Complainant initiated EEO counselor contact concerning these matters on August 20, 2020, which it found to be well beyond the 45-day limitation period. The instant appeal followed. ANALYSIS AND FINDINGS Previously Raised Claim (Claim 8) EEOC Regulation 29 C.F.R. § 1614.107(a)(1) provides that the Agency shall dismiss an entire complaint that states the same claim that is pending before or has been decided by the agency or the Commission. The Agency properly dismissed claim 8 for raising the same matter that was raised in a prior complaint (Agency No. HS-FEMA-02052-2020). The record reflects that Complainant filed the prior complaint on December 1, 2020, the same day as the instant complaint, and the Agency subsequently accepted Complainant’s claim regarding her July 10, 2020 removal from her position as Deputy Regional Administrator, Region 2, ES-0343-00. On appeal, Complainant acknowledges, in her brief, that this claim regarding her removal, “is pending as a different case” before the Agency. Therefore, the record reflects that claim 8 is identical to the matter already raised by Complainant. Untimely EEO Counselor Contact (Claims 1 - 7) EEOC Regulation 29 C.F.R. § 1614.105(a)(1) requires that complaints of discrimination should be brought to the attention of the Equal Employment Opportunity 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 regulations provide that the Agency or the Commission shall extend the time limits when the individual 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 his control from contacting the 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). The EEO Counselor’s report states that Complainant initiated EEO Counselor contact on August 20, 2020. 2021003339 4 The record also supports that the alleged discriminatory incidents occurred between August 11, 2018 and October 8, 2019. Here, Complainant waited almost two years to contact an EEO Counselor regarding the earliest alleged discrete act and Complainant waited approximately one year to initiate EEO counselor contact for the latest alleged discrete act. On appeal, Complainant does not argue that she was unaware of the 45-day limitation period or dispute that the EEO Counselor contact was untimely. Notably, Complainant does not present any presented any persuasive agreements or evidence to warrant an extension of the time limit for initiating EEO Counselor contact. We also find that Complainant’s claims are barred by the doctrine of laches. The Commission has consistently held that a complainant must act with due diligence in the pursuit of her claim or the doctrine of laches may apply. See Becker v. U.S. Postal Service, EEOC Appeal No. 01A45028 (Nov. 18, 2004) (finding that the doctrine of laches applied when complainant waited over two years from the date of the alleged discriminatory events before contacting an EEO Counselor); O'Dell v. Dep’t of Health and Human Services, EEOC Request No. 05901130 (Dec. 27, 1990). The doctrine of laches is an equitable remedy under which an individual's failure to pursue diligently her course of action could bar her claim. In the instant claims, Complainant contacted an EEO Counselor one to two years after the alleged incidents at issue, and therefore, her claims are barred by the doctrine of laches. Because we have affirmed the Agency’s dismissal of the formal complaint for failure to state a claim (Claim 8) and untimely EEO Counselor contact (Claims 1 - 7), we need not address the Agency’s alternative grounds for dismissal regarding claims 3 and 7. CONCLUSION The Agency’s final decision dismissing the formal complaint on the grounds discussed above 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. 2021003339 5 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. 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. 2021003339 6 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 August 30, 2021 Date
