[Redacted], Shane L., 1 Complainant,v.Gina M. Raimondo, Secretary, Department of Commerce (Bureau of the Census), Agency.

Equal Employment Opportunity Commission

Feb 7, 2022

Appeal No. 2022000014 (E.E.O.C. Feb. 7, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Shane L.,1 Complainant, v. Gina M. Raimondo, Secretary, Department of Commerce (Bureau of the Census), Agency. Appeal No. 2022000014 Agency No. 63202100068D DECISION On August 16, 2021, Complainant appealed with the Equal Employment Opportunity Commission (“EEOC” or “Commission”) from a July 19, 2021 Final Agency Decision (“FAD”) dismissing her 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., the Equal Pay Act of 1963 (“EPA”), as amended, 29 U.S.C. § 206(d) et seq., and Title II of the Genetic Information Nondiscrimination Act of 2008 (“GINA”), 42 U.S.C. § 2000ff et seq. BACKGROUND At the time of events giving rise to this complaint, Complainant was employed by the Agency as an Office Operations Supervisor (“OOS”) at the Agency’s Manhattan Area Census Office (“ACO”) of the New York Regional Census Center (“RCC”), in New York City. On December 11, 2021, Complainant filed a formal EEO complaint alleging discrimination bases of sex (female), genetic information (information from a genetic test), and reprisal for engaging in protected EEO activity (voicing opposition to unequal pay) 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. 2022000014 2 1. On February 5, 2020, Complainant became aware, from informal conversations with colleagues, that other employees were paid at an hourly rate of $50.00 for performing the same duties as Complainant, who as paid $29.50 hourly. 2. On February 7, 2020, she was laid off two days after inquiring about the alleged pay disparity and requesting a pay increase equal to that of her colleagues performing the same duties. Complainant initiated the instant complaint on October 7, 2020, with the New York State District of Human Rights (“DHR”), which forwarded her completed EEO Discrimination Form to the Agency’s Office of Civil Rights (“OCR”) on Complainant’s behalf. Complainant followed up with OCR on October 14, 2020, and an EEO Counselor within OCR was assigned to her case. The Agency dismissed the matter, pursuant to 29 C.F.R. § 1614.107(a)(1), for failure to state a claim, and, in the alternative, pursuant to 29 C.F.R. § 1614.107(a)(2), for untimely EEO counseling contact. The instant appeal from Complainant followed. ANALYSIS AND FINDINGS Timeliness of Appeal On appeal, the Agency asks the Commission to dismiss Complainant’s appeal as untimely filed pursuant to 29 C.F.R. § 1614.403(c). Appeals to the Commission must be filed within thirty (30) calendar days after a complainant receives notice of the Agency's final action, otherwise they may be subject to dismissal. 29 C.F.R. §§ 1614.402(a), 1614.403(c). The time within which to appeal shall be calculated from the receipt of the required document by the complainant. 29 C.F.R. § 1614.402(b). On July 19, 2021, Complainant sent an email to the Agency confirming that she received the FAD, issued earlier that day. Thus, the last day for Complainant to timely file an appeal with the EEOC fell on August 18, 2021. The FAD properly advised Complainant of her right to appeal the Agency’s dismissal of her complaint to the EEOC Office of Federal Operations (“OFO”), and of the 30-calendar day deadline to file. It also explained that due to the national emergency related to Covid-19, all appeals to OFO must be submitted electronically, via the EEOC Public Portal, and provided a link to the Portal and resources for technical assistance. The FAD also instructed Complainant to submit her appeal to the Agency’s Office of Civil Rights (“OCR”) Decennial Investigations and Adjudication Office (“DIAO”) Director “at the same time it is filed with OFO.” 2022000014 3 On August 16, 2021, Complainant emailed the DIAO Director, explaining that she had attached her appeal for the July 19, 2021 FAD because technical glitches prevented her from uploading it to OFO via the EEOC Public Portal. Complainant copied the email and attachment to other Agency offices, as well as the general email address for OFO. OFO replied on August 17, 2021, notifying Complainant by email: “We are in receipt of your August 16th appeal. We have forwarded your submission to the Control Division for docketing. You will receive a written acknowledgment letter with the docketing information when a number is assigned. Thank you.” Complainant was the only recipient of OFO’s August 17, 2021 email, so the Agency was not notified by OFO directly that receipt of Complainant’s appeal had been acknowledged. On October 1, 2021, Complainant emailed the DIAO Director, copying OFO, and a number of other individuals, letting them know that the glitch had been resolved and she had finally successfully uploaded her appeal via the EEOC Public Portal. Complainant’s activity caused the EEOC Public Portal to automatically generate an OFO Acknowledgement Letter identifying the filing date as October 1, 2021. On appeal, Complainant has again provided a copy of the August 17, 2021 acknowledgement email she received from OFO, establishing that her appeal was timely submitted. It appears that the correct date was not recorded in the EEOC Public Portal due to an administrative oversight on the part of the EEOC, not Complainant. Thus, we find Complainant’s appeal was timely filed. Failure to State a Claim In relevant part, 29 C.F.R. § 1614.107(a)(1) provides that an Agency shall dismiss a complaint that fails to state a claim. An Agency shall accept a complaint from any aggrieved employee or applicant for employment who believes that they were 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. See Diaz v. Dep’t of the Air Force, EEOC Request No. 05931049 (Apr. 21, 1994). If a complainant cannot establish that they are aggrieved, the agency shall dismiss a complaint for failure to state a claim. 29 C.F.R. § 1614.107(a)(1). An examination of Complainant’s formal complaint form shows that she only checked the boxes for retaliation in answer to the question about why she believed she was discriminated against. There is no doubt that Complainant has alleged a viable claim of retaliation when she alleged that she was laid off in response to opposition to unequal pay, as alleged Claim 2. Therefore, the Agency erred in dismissing Claim 2 for failure to state a claim. 2022000014 4 Moreover, a fair reading of the complete complaint form, as well as the related EEO counseling report, shows that Complainant, in Claim 1, was alleging that she was treated differently in regard to her compensation than other similarly situated employees and has implied this occurred, at least in part, because of her sex (female). This presents a viable claim of compensation discrimination. As a result, the Agency, in its dismissal decision, interpreted her claim as asserting a violation of the EPA (which is also an alleged violation of Title VII).2 Finally, during counseling Complainant asserted that genetic information played a role in the alleged compensation discrimination. While it is not clear from the record what she meant by this, this allegation formed the basis of the belief by the Agency that she was raising a claim under GINA. This will need to be clarified during the continued processing of her complaint. Untimely EEO Counselor Contact In relevant part, 29 C.F.R. §1614.107(a)(2) provides that an agency shall dismiss a complaint or a portion of a complaint that fails to comply with the applicable time limits contained in §1614.105, unless the agency extends the time limits in accordance with §1614.604(c). Under 29 C.F.R. § 1614.105(a)(1), complaints of discrimination should be brought to the attention of the 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. Here, the record reflects that the alleged discriminatory actions occurred on February 5 and 7, 2020, but Complainant did not raise them with an Agency EEO Counselor until October 14, 2020, long after the 45-day time limit. However, the circumstances of Complainant’s employment, along with her communications in the record, strongly indicate that Complainant was not notified or aware of the time limits for federal EEO complaints. Complainant was employed by the Agency for less than a week, paid for a total of 26.5 hours. The paperwork provided at the time she was laid off concerned unemployment benefits and did not reference EEO rights. In the record, the Agency offers no documentation establishing that Complainant was placed on notice of her EEO rights during her brief tenure. Complainant’s assertion that she had “300 days or more” to submit her complaint is consistent with the EEO procedures at the New York State Human Rights Division, where she initiated this complaint, further demonstrating a lack of knowledge of the federal EEO process. 2 The Agency improperly dismissed Claim 1 for failure to state a claim under the EPA by addressing the merits of the allegation, namely, Complainant’s failure to identify any employee of the “opposite sex” receiving higher pay than her. See Mitchell v. Dep’t of Veterans Affairs, EEOC Appeal No. 0120100361 (April 6, 2010) (EPA allegation improperly dismissed for failure to state a claim where the complainant identified both male and female employees who allegedly started at higher pay, an issue pertained to the merits of the complaint). 2022000014 5 Based on these unique circumstances, we exercise our discretion to excuse Complainant’s delay in seeking EEO counseling from the Agency. See 29 C.F.R. § 1614.604(c) (regulatory time limits are subject to waiver, estoppel and equitable tolling). Clarification of Bases of Discrimination Needed On Remand The Commission provides complainants with “liberal latitude” to clarify the bases of discrimination in their complaints, including adding or deleting bases of discrimination after filing their complaint. Sanchez v. Standard Brands, Inc., 431 F.2d 455, 462 (5th Cir. 1970); see, e.g. Larancuent v. Dep't of Def., EEOC Appeal No. 0120071899 (May 25, 2007) (in formal complaint complainant indicated basis of alleged discrimination was “other,” but later successfully amended bases to sex and age). There are at least three reasons why a complainant may fail to identify a basis of discrimination in a complaint. First, a complainant may not be aware of an employer's motivation. Second, a complainant may not fully comprehend the distinction between bases. Finally, a complainant may be unschooled and unsophisticated in the use of forms. Sanchez; see also Erick N. v. Dep’t of Homeland Sec., EEOC Appeal No. 2019001688 (Jun. 12, 2019). As we are remanding this complaint back to the Agency for investigation and further processing, we direct the EEO investigator to clarify with Complainant the bases of her allegations of discrimination on both claims. She may add additional bases of alleged discrimination in addition to sex on Claim 13 and retaliation on Claim 2. CONCLUSION Accordingly, the Agency’s decision dismissing Complainant’s complaint is REVERSED and the matter is hereby REMANDED to the Agency for further processing in accordance with this Decision and the following Order: ORDER The Agency is ordered to process the remanded claims in accordance with 29 C.F.R. § 1614.108 et seq. The Agency shall acknowledge to the Complainant that it has received the remanded claims within thirty (30) calendar days of the date this decision was issued. The Agency shall issue to Complainant a copy of the investigative file and also shall notify Complainant of the appropriate rights within one hundred fifty (150) calendar days of the date this decision was issued, unless the matter is otherwise resolved prior to that time. If the Complainant requests a final decision without a hearing, the Agency shall issue a final decision within sixty (60) days of receipt of Complainant’s request. 3 The investigator should also clarify if Complainant actually intended to assert a GINA claim on Claim 1. 2022000014 6 As provided in the statement entitled "Implementation of the Commission's Decision,” the Agency must send to the Compliance Officer: 1) a copy of the Agency’s letter of acknowledgment to Complainant, 2) a copy of the Agency’s notice that transmits the investigative file and notice of rights, and 3) either a copy of the complainant’s request for a hearing, a copy of complainant’s request for a FAD, or a statement from the agency that it did not receive a response from complainant by the end of the election period. IMPLEMENTATION OF THE COMMISSION’S DECISION (K0719) Under 29 C.F.R. § 1614.405(c) and § 1614.502, compliance with the Commission’s corrective action is mandatory. Within seven (7) calendar days of the completion of each ordered corrective action, the Agency shall submit via the Federal Sector EEO Portal (FedSEP) supporting documents in the digital format required by the Commission, referencing the compliance docket number under which compliance was being monitored. Once all compliance is complete, the Agency shall submit via FedSEP a final compliance report in the digital format required by the Commission. See 29 C.F.R. § 1614.403(g). The Agency’s final report must contain supporting documentation when previously not uploaded, and the Agency must send a copy of all submissions to the Complainant and his/her representative. If the Agency does not comply with the Commission’s order, the Complainant may petition the Commission for enforcement of the order. 29 C.F.R. § 1614.503(a). The Complainant also has the right to file a civil action to enforce compliance with the Commission’s order prior to or following an administrative petition for enforcement. See 29 C.F.R. §§ 1614.407, 1614.408, and 29 C.F.R. § 1614.503(g). Alternatively, the Complainant has the right to file a civil action on the underlying complaint in accordance with the paragraph below entitled “Right to File a Civil Action.” 29 C.F.R. §§ 1614.407 and 1614.408. A civil action for enforcement or a civil action on the underlying complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c) (1994 & Supp. IV 1999). If the Complainant files a civil action, the administrative processing of the complaint, including any petition for enforcement, will be terminated. See 29 C.F.R. § 1614.409. Failure by an agency to either file a compliance report or implement any of the orders set forth in this decision, without good cause shown, may result in the referral of this matter to the Office of Special Counsel pursuant to 29 C.F.R. § 1614.503(f) for enforcement by that agency. 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. 2022000014 7 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. 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. 2022000014 8 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 February 7, 2022 Date