[Redacted], Sidney S., 1 Complainant,v.General Paul M. Nakasone, Director, National Security Agency, Agency.

Equal Employment Opportunity Commission

Nov 29, 2021

Appeal No. 2021003714 (E.E.O.C. Nov. 29, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Sidney S.,1 Complainant, v. General Paul M. Nakasone, Director, National Security Agency, Agency. Appeal No. 2021003714 Agency No. 20-009 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's final decision (FAD) dated May 10, 2021, dismissing his complaint of unlawful employment discrimination in violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Systems Engineer at the Agency’s facility in Ft. George G. Meade, Maryland. Beginning in February 2017, prior to the discriminatory event currently on appeal, Complainant alleged that he experienced discriminatory treatment from his former Branch Chief (Chief) due to a delayed arrival to his duty station. Throughout 2017, Complainant alleged that the Chief engaged in rude and counterproductive behavior toward him. Due to this treatment, Complainant contacted the Agency’s Office of Inspector General and Anti-Harassment Coordinator. After an internal investigation regarding Complainant’s claim of harassment and bullying where no violation was found, Complainant requested a transfer to another position outside of the Chief’s purview. Subsequently, in 2019, Complainant became aware that the Chief was assigned to the Agency’s promotion board for his grade level. 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. 2021003714 2 Complainant made contact with the Office of Discrimination Complaints (EEO Office) on October 10, 2019. On November 1, 2019, Complainant subsequently filled out an Initial Counseling Data Sheet with the EEO Office. Complainant indicated on the form that he was made aware of the alleged discrimination by the Deputy Director of Dispute Resolution (Deputy Director)2. He was directed back to the EEO Office on October 10, 2019. He also noted in the form that the events surrounding his claim of discrimination originated on July 7, 2017. He attached a document entitled “Deployment Timeline of Events: December 2015 - August 2017” which provided a series of events which lead to his complaint of harassment and bullying in 2017. The EEO Counselor noted in the Counselor’s Report that Complainant’s date of initial contact was October 10, 2019. In addition, the EEO Counselor indicated that Complainant informed the EEO Counselor that he was erroneously sent away from the EEO Office in May 2019, because he was unable to state a basis for his claim. When the matter could not be resolved informally, on January 16, 2020, Complainant filed a formal complaint alleging that the Agency subjected him to discrimination on the basis of disability when: 1. In 2019, Complainant’s Chief and supervisor (Supervisor) were placed on a promotion board which evaluated his Fiscal Year 2019 (FY2019) performance; the promotion board subsequently determined that Complainant should not be promoted. The Agency issued its FAD dismissing the complaint for untimely EEO Counselor contact pursuant to 29 C.F.R. § 1614.107(a)(2). The FAD reflects that Complainant contacted the EEO office on April 29, 2019, with concerns regarding reprisal for complaints he made in 2017, about the Supervisor and the Chief. At that time, Complainant indicated his concern that, among other things, that the Chief had been placed on the promotion board for his grade. Because of Complainants concerns with the events from 2017 which were under internal investigation, the EEO Office referred him to the Anti-Harassment Coordinator Office. Although Complainant raised concerns in April 2019, of the Chief being placed on the promotion panel, the Agency indicated that the decision not to promote him was a discrete from Complainant’s concerns about the Chief’s appointment to the panel. The Agency’s timeline for the 2019 HR promotion program notes that the effective date of the promotion at issue was August 18, 2019. Subsequently, the FAD indicated that the Anti- Harassment Coordinator Office referred Complainant to the EEO Office and that on October 10, 2019, Complainant contacted the EEO Office. 2 We note that this individual was also referred to as the referred to in other portions of this file as the Anti-Harassment Coordinator. 2021003714 3 The Agency found that Complainant was aware of the requisite 45-day time limit and failed to initiate EEO Counselor contact within 45 days from the effective date of the promotion. Therefore, the Agency found that Complainant failed to contact the EEO Counselor in a timely manner regarding the promotion decision. This appeal followed. On appeal, Complainant argues that the Deputy Director directed him to contact the EEO Office regarding his promotion on October 10, 2019, outside of the 45-day limitation. In addition, he argues that the first date that he would have been aware of his promotion was not August 18, 2019, but rather September 19, 2019. Complainant argues that on that day, he contacted the Deputy Director and became aware of the situation. The Agency argues on appeal that the first time Complainant shifted the basis of his complaint from reprisal to disability discrimination was on October 10, 2019. The Agency argues that irrespective of the underlying facts, the Complainant failed to timely contact an EEO Counselor within the regulatory time limits. The Agency also notes that Complainant was fully aware of the 45-day deadline after having taken the NoFEAR Act training at least eight times since 2008. As such, the Agency asks that the Commission affirm its dismissal of the complaint. ANALYSIS AND FINDINGS EEOC Regulation 29 C.F.R. §1614.107(a)(2) states that the Agency shall dismiss a complaint or a portion of a complaint that fails to comply with the applicable time limits contained in §1614.105, §1614.106 and §1614.204(c), unless the Agency extends the time limits in accordance with §1614.604(c). 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 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). In this case, Complainant argues that he was not aware of the promotion in question until September 19, 2019, when he spoke to the Deputy Director. The Agency provided a copy of its timeline for the 2019 HR promotion program. The timeline lists the Agency-wide process and the effective date for FY2019 promotions as August 18, 2019. The Agency provided no supporting affidavit or information outside of the timeline itself. There is no indication in the record that this timeline was followed or that Complainant was provided the timeline. 2021003714 4 It is well-settled that where, as here, there is an issue of timeliness, "[a]n agency always bears the burden of obtaining sufficient information to support a reasoned determination as to timeliness." Williams v. Dep’t of Def., EEOC Request No. 05920506 (Aug. 25, 1992). We find that Complainant has asserted that he became aware of the promotion decisions on September 19, 2019, from the Deputy Director. Although the Agency provided the timeline, we find that the Agency has not met its burden to establish that Complainant should have been aware of the promotion timeline or that he was made aware of the promotion decision sooner than September 19, 2019. There is no dispute that Complainant contacted the EEO Office on October 10, 2019. This date is within the 45-day limit, from September 19, 2019, the first date that Complainant was aware he did not receive the promotion. As such, we find that the dismissal was not appropriate. CONCLUSION We REVERSE the Agency’s final decision dismissing the formal complaint on the procedural grounds discussed above. We REMAND this matter to the Agency for further processing in accordance with the ORDER below. ORDER (E0618) The Agency is ordered to process the remanded claims in accordance with 29 C.F.R. § 1614.108. 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. 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. 2021003714 5 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. 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 2021003714 6 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 (R0610) This is a decision requiring the Agency to continue its administrative processing of your complaint. However, if you wish to file a civil action, you have the right to file such action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision. In the alternative, you may file a civil action after one hundred and eighty (180) calendar days of the date you filed your complaint with the Agency, or filed your appeal with the Commission. 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. 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. 2021003714 7 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 November 29, 2021 Date