[Redacted], Reggie D., 1 Complainant,v.Lloyd J. Austin III, Secretary, Department of Defense (Defense Logistics Agency), Agency.

Equal Employment Opportunity Commission

Jun 8, 2021

Appeal No. 2021002157 (E.E.O.C. Jun. 8, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Reggie D.,1 Complainant, v. Lloyd J. Austin III, Secretary, Department of Defense (Defense Logistics Agency), Agency. Appeal No. 2021002157 Agency No. DLAN-21-0004 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's decision dated January 5, 2021, dismissing his complaint alleging unlawful employment discrimination in violation of the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Transportation Assistant, 2102, GS 6, at the Agency’s DLA Distribution Oklahoma facility in Oklahoma City, Oklahoma. On December 4, 2020, Complainant filed a formal complaint alleging that the Agency subjected him to discrimination on the basis of age (63) when, on September 9, 2020, without notice, he was terminated from employment for his actions on August 19, 2020, his alleged refusal to smoke in designation smoking areas, and for “inappropriate” behavior toward peers, supervisors, and customers. Complainant states the given reasons for termination are a pretext for age discrimination. Complainant further states he was also subjected to disparate treatment and a hostile work environment due to his age. 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. 2021002157 2 In a letter dated January 5, 2021, the Agency dismissed Complainant’s formal complaint, filed on December 4, 2020, pursuant to 29 C.F.R. § 1614.107(a)(2) because it was not filed within the prescribed time period set forth at 29 C.F.R. § 1614.106(b). Complainant argues this dismissal was improper because the Agency failed to provide Complainant a written copy of the EEO Counselor’s report within fifteen (15) days as required by 29 C.F.R. § 1614.105(c); the Agency addressed its Notice of Final Interview (“Notice”) to Complainant only and not to his counsel of record; the Notice of Final Interview referenced Form “DD2265”, but did not provide this form, instead attaching DD Form 2655; Complainant’s counsel of record did complete said DD Form 2655 and submitted it on December 4, 2020; Complainant’s counsel of record had already provided the EEO Counselor with “detailed acts, omissions and witness names and identification” by email on November 5, 2020 with no response; and dismissal of Complainant’s “complaint is an overly drastic action contrary to general policy §1614.101 ‘to prohibit discrimination in employment because of race, color, religion, sex, nation origin, age, disability, or genetic information and to promote the full realization of equal employment opportunity through a continuing affirmative program in each agency.’” The Agency argues Complainant’s counsel of record received the Notice on November 10, 2020 per counsel’s own date stamp; the Notice specifically stated Complainant had 15 calendar days from receipt of this Notice to file a formal complaint of discrimination; and Complainant’s counsel of record does not dispute that he did not respond to the Notice until December 4, 2020. ANALYSIS AND FINDINGS An agency shall accept a complaint from any aggrieved employee or applicant for employment who believes that he or she has been discriminated against by that agency because of race, color, religion, sex, national origin, age or disabling condition. 29 C.F.R. §§ 1614.103, .106(a). The Commission's federal sector case precedent has long defined an "aggrieved employee" as one who suffers a present harm or loss with respect to a term, condition, or privilege of employment for which there is a remedy. Diaz v. Dep’t of the Air Force, EEOC Request No. 05931049 (Apr. 21, 1994). The regulation set forth at 29 C.F.R. § 1614.107(a)(2) provides, in relevant part, that an agency shall dismiss a complaint that fails to comply with the applicable time limits. A formal “complaint must be filed within 15 days of receipt of the notice required by § 1614.105 (d), (e) or (f).” (29 C.F.R. § 1614.106(b)). The notice required by 29 C.F.R. § 1614.105 (d) “shall inform the complainant of the right to file a discrimination complaint within 15 days of receipt of the notice, of the appropriate official with whom to file a complaint and of the complainant's duty to assure that the agency is informed immediately if the complainant retains counsel or a representative.” Regardless of to whom the Notice was addressed, it was clearly received by the office of the counsel of record no later than November 10, 2020, if not on November 9, 2020 as alleged by the Agency based on USPS tracking. Complainant does not dispute that he received the Notice on November 10, 2020. Therefore, pursuant to 29 C.F.R. § 1614.106(b), Complainant needed to file 2021002157 3 a formal complaint by November 25, 2020 in order to be considered timely and avoid dismissal. However, Complainant’s formal complaint was filed on December 4, 2020. The Notice specifically provided Complainant had the right to file a formal complaint of employment discrimination within 15 calendar days after receipt of the Notice. Counsel for Complainant also appears to have been aware of this time limitation prior to the receipt of the Notice as he stated in his November 5, 2020 email that Complainant, “will have 15 days from the date [the Notice of Right to File is] received to notify the DLA Distribution Headquarters of his intent to file a formal complaint.” Therefore, the complaint was not timely filed. Complainant argues there were deficiencies in the Notice in that the Notice requested Complainant “complete the attached DD2265 (Formal Complaint of Discrimination in Federal Government)” but no such form was attached. Instead, the form attached to the Notice was labeled “DD FORM 2655.” However, the Notice specifically stated Complainant was “not required” to “complete the attached DD2265.” In addition, there is no such requirement that a formal complaint be filed using any specific form. The requirements (which were also enumerated in the Notice) are merely that a complaint contain a signed statement from the person claiming to be aggrieved or their attorney; that the statement “be sufficiently precise to identify the aggrieved individual and the agency and to describe generally the action(s) or practice(s) that form the basis of the complaint”; and that it contain the telephone number and address of the complainant or representative. 29 C.F.R. § 1614.106(c). Complainant further argues that the Agency received Complainant’s complaint on November 5, 2020 via email from Complainant’s counsel of record. However, this email was not signed by either Complainant or his attorney as required by 29 C.F.R. § 1614.106(c). It also stated that the notice of Complainant’s right to file a complaint should be sent to Complainant’s attorney’s office, and Complainant “will have 15-calendar days from the date received to notify the DLA Distribution Headquarters of his intent to file a formal complaint.” Thus it appears counsel for Complainant did not intend for this email to serve as a formal complaint. It was also sent prior to the November 10, 2020 Notice advising Complainant of his right to file a formal complaint within 15 days after receipt of the Notice. It should therefore have been clear that the November 5, 2020 email from Complainant’s attorney to the EEO Counselor was not considered a formal complaint by the Agency. Complainant also argues he was not provided a written report from the EEO Counselor within 15 days as required by 29 C.F.R. § 1614.105(c). However, this regulation does not require that such a report be provided prior to the filing of a complaint. The regulation specifically states that “[w]hen advised that a complaint has been filed by an aggrieved person, the Counselor shall submit a written report within 15 days.” (29 C.F.R § 1614.105(c), emphasis added. See King v. Dep’t of Veterans Affairs, EEOC Request No. 01944452 (Jan. 5, 1995) (an EEO Counselor is not required to provide appellant with a copy of the Counselor's Report prior to the filing of a formal complaint)). Finally, Complaint argues due diligence was exercised by Complainant and his attorney, and dismissal would be “overly drastic.” 2021002157 4 However, both the Complainant and his attorney received the Notice no later than November 10, 2020; the Notice contained all statutorily required information, including that Complainant had the right to file a formal complaint of employment discrimination with 15 calendar days of receipt of the Notice; and counsel for Complainant has demonstrated he was previously aware of this 15-day limitation; and the complaint was not filed until December 4, 2020. Thus these arguments lack merit. Complainant’s formal complaint was not timely filed. 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. 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. 2021002157 5 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. The court has the sole discretion to grant or deny these types of requests. 2021002157 6 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 June 8, 2021 Date