[Redacted], Stella B, 1 Complainant,v.Dat Tran Acting Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity Commission

Feb 9, 2021

Appeal No. 2021000726 (E.E.O.C. Feb. 9, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Stella B,1 Complainant, v. Dat Tran Acting Secretary, Department of Veterans Affairs, Agency. Appeal No. 2021000726 Agency No. 20DR-0ALC-2020105108 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's final decision dated October 9, 2020, dismissing a formal complaint claiming 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 During the period at issue, Complainant worked as a Student Trainee in the Pathways program at the Agency’s Office of Acquisition and Logistics in Washington, D.C. On July 10, 2020, Complainant initiated EEO Counselor contact. Informal efforts to resolve her concerns were unsuccessful. On August 23, 2020, Complainant filed a formal complaint claiming the Agency discriminated against her based on race and national origin when: 1. between June 2018 and July 2, 2019, Complainant: a) was not provided with a functioning computer, 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. 2021000726 2 b) was denied the opportunity to rotate to various departments, c) requested to work remotely and was denied, and d) requested reassignment to another team and was denied. 2. on June 26, 2019, Complainant received a Notice of Termination during her Probationary Period, with an effective date of July 2, 2019. In its final decision dated October 9, 2020, the Agency dismissed the formal complaint for untimely EEO Counselor contact, pursuant to 29 C.F.R. § 1614.107(a)(2). The Agency determined that Complainant did not initiate EEO counseling until July 10, 2020, which the Agency found well beyond the 45-day limitation period. 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 personnel action, within forty-five (45) days of the effective date of the action. 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. Dep’t of the Navy, EEOC Request No. 05970852 (Feb. 11, 1999). Thus, the time limitation is not triggered until a Complainant reasonably suspects discrimination, but before all the facts that support a charge of discrimination have become apparent. Here, the last discriminatory act Complainant alleges in her formal complaint involves a personnel action: her termination from Agency employment effective July 2, 2019. Because Complainant’s resignation is a personnel action, Complainant had 45 days from July 2, 2019, or until August 16, 2019, to timely contact an EEO Counselor. However, the EEO Counselor’s report reflects that Complainant initiated EEO Counselor contact one year later, on July 10, 2020. 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 she did not know and reasonably should not have known that the discriminatory matter or personnel action occurred, that despite due diligence she 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). 2021000726 3 Complainant has not presented any persuasive argument or evidence warranting an extension of the time limit for initiating EEO Counselor contact. A copy of the termination letter is included in the record. Section 3 of the letter informed Complainant that her termination was effective July 2, 2019. (emphasis in original). Section 5 of the termination letter informed Complainant of the 45-day limitation period and stated the following: Equal Employment Opportunity Commission (EEOC). If you believe this action is based on discrimination on the basis of race, color, religion, sex, national origin, age or disabling condition, you may file a complaint of discrimination. If you elect to file a complaint of discrimination, you may do so by contacting the Office of Resolution Management (ORM) at 1-888-566-3982. Your complaint will be processed in accordance with EEOC regulations at 29 C.F.R., Part 1614. Your initial contact with the ORM office must be done within 45 calendar days of the effective date of this action. [Emphasis added.] Consequently, Complainant had actual notice that she needed to contact ORM to file an EEO complaint within 45 days for the effective date of the termination. We further note that Section 9 of the termination letter informed Complainant to contact the Employee/Labor Relations Specialist (ELR Specialist) if she had any questions. We address Complainant’s assertion that she contacted the ELR Specialist who directed her to file a FOIA request and referred her to contact another individual (Contact 1) who did not respond until late August 2019. Complainant indicated that Contact 1 informed her that he was not the correct contact person and Contact 1 referred Complainant to another individual (Contact 2). Complainant stated she reached Contact 2 in “late August and early September [2019],” but followed up again with the ELR Specialist. However, Complainant did not receive any information about how to contact EEOC. Complainant further noted that in the interim, she “was dealing with a number of health concerns that were exacerbated by [an] insurance matter and by [her] unemployment.” Consequently, Complainant stated that it was not until July 2020 when she was informed that she needed to file a discrimination complaint through EEOC. A copy of Complainant’s July 28, 2019 email to the ELR Specialist reflects that Complainant did not exhibit, through her correspondence, the intent to pursue an EEO complaint at the time. Specifically, Complainant stated: I received a probationary termination letter . . . I would like clear documentation to support the cause for my termination. The reasons stated in the letter were unsound and inaccurate. The record further indicates that on July 29, 2019, the ELR Specialist emailed and informed Complainant that: 2021000726 4 As I am an HR consultant, I act only in an advisory capacity. The only think I would be able to talk to you about would your appeal rights as listed in the probationary termination letter. If you desire, you may make a request for documents as part of a Freedom of Information Act (FOIA). On August 21, 2019, Complainant followed up with the ELR Specialist and informed her that Contact 1 did not have access to information regarding her probationary termination. Complainant then requested that the ELR Specialist inform her of the identity of the party who recommended her termination. The following day, the ELR Specialist emailed Complainant on August 22, 2019, and identified the responsible management official who recommended her termination. It is well settled that a complainant satisfies the criterion of EEO Counselor contact by contacting an agency official logically connected with the EEO process and by exhibiting an intent to begin the EEO process. See Floyd v. National Guard Bureau, EEOC Request No. 05890086 (June 22, 1989). The context of Complainant’s correspondence with the ELR Specialist supports a finding that Complainant merely informed the ELR Specialist that she wanted clear documentation regarding the circumstances of her termination. The termination letter clearly instructed Complainant to call ORM within 45 days of the effective date of her termination, but Complainant failed to do so. Additionally, there is no dispute in the record that Complainant’s termination was effective July 2, 2019, and the record supports that Complainant had not elected to pursue the EEO complaint process when she contacted the ELR Specialist. Therefore, we find that the Agency properly dismissed Complainant’s formal complaint for untimely EEO Counselor contact. To the extent that Complainant alleges that her medication condition was exacerbated during this period, we note that Complainant has not provided any documentation regarding her condition or how it rendered her so physically or mentally incapacitated such that she was unable to meet the regulatory time limits. The Agency’s final decision dismissing the formal complaint for untimely EEO Counselor 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. 2021000726 5 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. 2021000726 6 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 9, 2021 Date