[Redacted], Tania O., 1 Complainant,v.Lloyd J. Austin III, Secretary, Department of Defense (Defense Threat Reduction Agency), Agency.

Equal Employment Opportunity Commission

Apr 27, 2022

Appeal No. 2022001902 (E.E.O.C. Apr. 27, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Tania O.,1 Complainant, v. Lloyd J. Austin III, Secretary, Department of Defense (Defense Threat Reduction Agency), Agency. Appeal No. 2022001902 Agency No. DTRA-21-014 DECISION Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's decision dated January 19, 2022, dismissing her 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. Upon review, the Commission finds that Complainant's complaint was properly dismissed pursuant to 29 C.F.R. § 1614.107(a)(2), for untimely EEO Counselor contact. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Budget Analyst at the Agency’s facility in Fort Belvoir, Virginia. On September 5, 2018, Complainant filed a formal complaint, alleging that the Agency subjected her to a hostile work environment and discriminated against her on the basis of disability (mental) when she was subjected to a denial of reasonable accommodation; denial of telework; removal of duties; and issues with her leave requests in nine incidents. That complaint is currently pending and is docketed as EEOC Appeal No. 2022000007. During the investigation of that complaint, Complainant also alleged that the Agency’s actions left her with no choice but to resign on November 19, 2018. 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. 2022001902 2 On March 18, 2020, the Equal Employment Opportunity Commission Administrative Judge (AJ) assigned to the matter in EEOC Appeal No. 2022000007, issued a Case Management Order (Order). The Order noted that the Agency failed to recognize the issue of constructive discharge as a separate claim in its letter of acceptance, although it was required to do so pursuant to 29 C.F.R. § 1604.302(b). Therein, the AJ ordered the Agency to permit Complainant the opportunity to seek EEO counseling on the issue and to process it accordingly. On April 1, 2020, Complainant emailed Agency Counsel asking to include a claim of constructive discharge to her existing complaint based on the AJ’s Order. On July 25, 2021, Complainant initiated EEO Counselor contact alleging that the Agency subjected her to a hostile work environment and discrimination on the bases of disability (mental) when, on November 19, 2018, she was forced to resign her position as a Budget Analyst, GS-0560-13, due to adverse conditions created by her supervisor. On January 19, 2022, the Agency issued its final decision. The Agency determined that Complainant had 45 days from the date of the AJ’s March 18, 2020, Order in order to timely initiate EEO Counselor contact. However, Complainant did not make contact until July 25, 2021. The Agency determined that Complainant failed to provide any information that would warrant extending the 45-day time frame limitation. Accordingly, the Agency dismissed Complainant’s EEO complaint pursuant to 29 C.F.R. §1614.107(a)(2) for failure to contact the EEO Counselor in a timely manner. CONTENTIONS ON APPEAL On appeal, Complainant asserts that the AJ’s March 18, 2020, Order did not actually subject her to the 45-day time frame limitation, therefore, her July 25, 2021 EEO Counselor contact should be deemed timely. However, if she were bound by such time frame limitations, Complainant asserts that her April 1, 2020, email to Agency Counsel satisfied the requirement. Complainant requests that the Commission reverse the Agency’s decision and remand the matter for further processing. The Agency did not provide an appellate brief. 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 Regulation 29 C.F.R. §1614.105(a)(2) allows the Agency or the Commission to 2022001902 3 extend the time limit if Complainant can establish that Complainant was not aware of the time limit, that Complainant 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 her control from contacting the EEO Counselor within the time limit, or for other reasons considered sufficient by the Agency or Commission. The record discloses that during the processing of Complainant’s other complaint, the AJ determined that the Agency had failed to recognize the issue of constructive discharge as a separate claim in its letter of acceptance. Accordingly, on March 18, 2020, the AJ ordered the Agency to permit Complainant the opportunity to seek EEO counseling on the issue and to process it accordingly. On appeal, Complainant argued that she brought forth the constructive discharge claim as early as October 2018. We agree with her on this aspect, as did the AJ when she issued the March 18, 2020, Order determining that the Agency had failed to properly accept the claim. However, at that junction, Complainant had 45 days from receipt of the AJ’s March 18, 2020, Order to timely contact an EEO Counselor, which she failed to do. Complainant’s April 1, 2020, email to Agency Counsel, that she wanted the constructive discharge claim to be added to her then existing complaint, does not comply with 29 C.F.R. §1614.105(a)(1). Furthermore, the email did not comply with the AJ’s Order which instructed Complainant to seek EEO counseling, not Agency Counsel. Complainant also made several appellate arguments that she was under a reasonable belief that the Agency would initiate an amendment on her behalf; that the constructive discharge portion was set for a hearing; or that the Agency would simply address it in a separate matter. Again, we find that these arguments are insufficient. Complainant has failed to present adequate justification, pursuant to 29 C.F.R. §1614.105(a)(2), for extending the limitation period beyond 45 days. CONCLUSION Based on the foregoing, we find that Complainant has not provided sufficient justification for extending the applicable time limit. Accordingly, the Agency's final decision dismissing the 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. 2022001902 4 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. 2022001902 5 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 April 27, 2022 Date