[Redacted], Russ Y., 1 Complainant,v.Merrick B. Garland, Attorney General, Department of Justice (Federal Bureau of Prisons), Agency.

Equal Employment Opportunity Commission

Jul 22, 2021

Appeal No. 2021002410 (E.E.O.C. Jul. 22, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Russ Y.,1 Complainant, v. Merrick B. Garland, Attorney General, Department of Justice (Federal Bureau of Prisons), Agency. Appeal No. 2021002410 Agency No. BOP-2020-01780 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's final decision dated November 9, 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., and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. BACKGROUND During the relevant period, Complainant worked for the Agency as a Safety Administrator in Brooklyn, New York. On July 7, 2020, Complainant initiated EEO Counselor contact. Informal efforts to resolve his claims were unsuccessful. On October 14, 2020, Complainant filed a formal EEO complaint alleging the Agency subjected him to discrimination on the bases of race, color, disability, and in reprisal for prior EEO activity when from March 2018 to February 29, 2020, the Bureau of Prisons (BOP) harassed him 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. 2021002410 2 • he refused to discuss workers compensation cases with unauthorized staff members; • he was told by the Warden to “get out of my office” in a harsh and abrupt tone; • management failed to follow his limited light duty assignment; • he became the only staff member in his department; • he failed two program reviews; • little effort was made to fill the empty positions in his office; • after filing a complaint, he was told by management “you need to start watching what time you are arriving to work, everyone has issues someone else can easily hold you accountable for”; • management attempted to assign the entire institution’s Mold Remediation Operations and Maintenance to his understaffed department; • he received a Letter of Counseling; • the Warden yelled at him during a meeting; • his request for reasonable accommodation was denied; and • he was terminated from his position with the Federal Bureau of Prisons. In its November 9, 2020 final decision, the Agency dismissed the formal complaint for untimely EEO Counselor contact, pursuant to 29 C.F.R. § 1614.107(a)(2). Specifically, the Agency determined that Complainant initiated EEO Counselor contact on July 7, 2020, which the Agency found was more than forty-five days after the latest alleged discriminatory event occurred. In response to the EEO Counselor’s request for an explanation for his untimely EEO contact, Complainant explained that after talking with his wife and gathering more information, he came to the belief on July 20, 2020, that he had been discriminated against. The instant appeal followed. ANALYSIS AND FINDINGS 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. Here, it is undisputed that the alleged discriminatory events occurred from March 18, 2018 to February 29, 2020, but Complainant did not initiate contact with an EEO Counselor until July 7, 2020, well beyond the forty-five (45) day limitation period. The record further indicates that Complainant’s training records from MDC Brooklyn Human Resources Office show that he completed annual EEO training, that included information on the relevant time deadlines, in January 2019. On appeal, Complainant argues that his EEO counseling contact was delayed because he did not suspect he was the victim of discrimination until July 20, 2020. The Commission has adopted a "reasonable suspicion" standard (as opposed to a "supportive facts" standard) to determine when the forty-five (45) day limitation period is triggered. See Howard v. Department of the Navy, 2021002410 3 EEOC Request No. 05970852 (February 11, 1999). Thus, the time limitation for seeking EEO counseling is not triggered until a complainant reasonably suspects discrimination, but before all the facts that support a charge of discrimination have become apparent. Here, we conclude that Complainant had, or should have had, a reasonable suspicion of discrimination regarding his claims more than 45 days prior to his initial contact with an EEO counselor. If nothing else, his termination from his position in February 2020 should have led him to seek counseling. We are not persuaded that Complainant did not reasonably suspect discrimination more than 45 days before he initiated contact with an EEO counselor. The Agency’s final decision dismissing the formal complaint for untimely EEO contact 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. 2021002410 4 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. 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 July 22, 2021 Date