[Redacted], Ronald H., 1 Complainant,v.John E. Whitley, Acting Secretary, Department of the Army, Agency.

Equal Employment Opportunity Commission

Jun 17, 2021

Appeal No. 2021001555 (E.E.O.C. Jun. 17, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Ronald H.,1 Complainant, v. John E. Whitley, Acting Secretary, Department of the Army, Agency. Appeal No. 2021001555 Agency No. ARRILEY20OCT03108 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's decision dated November 20, 2020, 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 HR Assistant (Information Systems), GS-0203-07, at the Agency’s Civilian Human Resources Agency (CHRA) SW Regional Processing Center in Fort Riley, Kansas. On November 17, 2020, Complainant filed a formal complaint alleging that the Agency subjected him to discrimination on the bases of race (African American), reprisal and religion (Christian) when: 1. On or about October 2018, Complainant’s supervisor and division chief, denied Complainant the opportunity to attend the training branch, which would have assisted him with his job performance and promotion. All employees within Building 305 attended the training branch. Complainant later received a negative comment on his 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. 2021001555 2 performance appraisal on his performance, but if he had attended the training branch his performance would have been enhanced. 2. On or about June 2019, Complainant filed a complaint with the EEO on Fort Riley against his former supervisor for discrimination and harassment. The former supervisor allowed employees to go into Complainant’s assigned box and remove actions that he had already worked on, holding Compliant accountable for tickets that other employees caused by processing the action, and allowing the employees to take credit for Complainant’s work. 3. From September 29, 2019 to March 2020, Complainant’s supervisor greeted all the employees during her morning rounds providing them with the daily updates skipping over Complainant and on her way back to her office she acknowledged Complainant last, and he found her actions offensive. Complainant had a management time meeting with his supervisor, and she acknowledged her actions were inappropriate. and asked Complainant to inform her if she treated him in that matter again. 4. Complainant’s supervisor put a comment on his appraisal in reference to him taking leave to handle emergency situations. Complainant’s leave was not an issue, until his supervisor learned he was leaving the agency. The Agency dismissed the Complainant’s complaint pursuant to 29 C.F.R. §§ 1614.105(a)(1), 1614.107(a)(2), for untimely EEO counselor contact. The instant appeal followed. Complainant submitted a statement in support of his appeal, arguing that the EEO counselor “covered” for the Agency and committed an error in dismissing his complaint. The Agency submitted a brief in response. 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, in the case of a personnel action, within 45 days of the effective date of the action. 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. EEOC Regulation 29 C.F.R. §1614.105(a)(2) allows the Agency or the Commission to extend the time limit if a complainant can establish that they were not aware of the time limit, that they 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 their control from contacting the EEO Counselor within the time limit, or for other reasons considered sufficient by the Agency or Commission. 2021001555 3 In this case, Complainant has alleged acts of discrimination and a hostile work environment beginning in or around October 2018 and continuing until he departed the Agency in August 2020. August 13, 2020 was Complainant’s last working day, and he initiated EEO Counselor contact regarding the discrimination and hostile work environment 48 days later on October 1, 2020. Complainant’s contact with the EEO counselor was three days beyond the 45-day limitation period proscribed by 29 C.F.R. §1614.105(a)(1). Despite Complainant’s argument, it is not clear from the record that the EEO counselor “covered” for the Agency by failing to notify him of the 45-day limitation period. As stated by the Agency in their brief, Complainant was aware of the time limits since he previously contacted an EEO Counselor in two other cases (although ultimately choosing not to file a formal complaint after counseling) which shows he is familiar with the process. The Agency provided supporting documentation to support their statement, including an affidavit from the EEO counselor and copies of a pamphlet and chart that she used to explain EEO time limits at consultations. As such, we conclude that the record adequately supports the Agency’s dismissal for untimely EEO counselor contact. CONCLUSION 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 2021001555 4 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. The court has the sole discretion to grant or deny these types of requests. 2021001555 5 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 17, 2021 Date