[Redacted], Titus M., 1 Complainant,v.Dr. Miguel A. Cardona, Secretary, Department of Education, Agency.

Equal Employment Opportunity Commission

Dec 22, 2021

Appeal No. 2021004092 (E.E.O.C. Dec. 22, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Titus M.,1 Complainant, v. Dr. Miguel A. Cardona, Secretary, Department of Education, Agency. Appeal No. 2021004092 Agency No. ED-2021-OESE-0020 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's decision dated June 15, 2021, 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 At the time of events giving rise to this complaint, Complainant worked as a Management Analyst, GS-03430-12, at the Agency’s Office of Elementary and Secondary Education (OESE) at the Agency’s Headquarters in Washington, District of Columbia. On June 4, 2021, Complainant filed a formal complaint alleging that the Agency subjected him to discrimination on the bases of race (Black), religion (Baptist), disability, and reprisal for prior protected EEO activity when: 1. Complainant's Within-Grade-Increase was never back-dated per the October 24, 2017 correction made to Complainant's electronic Official Personnel File (eOPF). 2. Complainant's promotion to GS-12 was not processed until March 2019. 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. 2021004092 2 3. On January 30, 2020, Complainant's cubicle door was vandalized. The Agency dismissed all three claims, pursuant to 29 C.F.R. § 1614.107(a)(2), for untimely EEO Counselor contact. The Agency also dismissed claims 1 and 2, pursuant to 29 C.F.R. § 1614.107(a)(1), for stating the same claims Complainant had already raised in a previous EEO complaint identified as Agency No. ED-2019-OII-0001. Complainant filed the instant appeal, stating he wished to appeal only the Agency’s dismissal of claim 3. Complainant acknowledged the other claims were “already being reviewed at the hearing phase.” In support of his appeal of claim 3, Complainant contends that the Agency’s representative never provided notice to Complainant or his attorney that they could file his complaint in February 2021 or when it needed to be filed in a timely manner. He states that when the Agency finally gave him an official date to file, it was late May 2021. Complainant asserts that the Agency intentionally delayed the processing of his claim and letting him know his rights and responsibilities. The Agency contends on appeal that claim 3 was properly dismissed for untimely EEO Counselor contact. The Agency notes that while June 4, 2021, is the date Complainant filed his formal EEO complaint, this is not the date that was used to determine whether he had timely contacted an EEO counselor. The Agency asserts that Complainant attempted to raise claim 3 in a verbal Motion to Amend in a different EEO case (Agency No. ED-2019-OII-0001, EEOC Hearing No. 570-2020-00793X), but the Administrative Judge (AJ) in that case denied Complainant’s Motion to Amend to include claim 3 in that matter. Instead, the AJ ordered the Agency “to process the new claim [claim 3] as a separate EEO complaint,” specifying that the Agency must use February 9, 2021, the date of Complainant’s verbal amendment request, as the date to determine whether the claim was timely raised under 29 CFR §1614.105(a). (Complaint File, pp. 21-22). The Agency states that February 9, 2021 is more than a year after the events alleged in claim 3 occurred, and therefore, this claim was not timely brought to the attention of an EEO Counselor ANALYSIS AND FINDINGS At Complainant’s request, we are only reviewing the Agency’s dismissal of claim 2 in this decision. EEOC Regulation 29 C.F.R. § 1614.105(a)(1) provides that an aggrieved person must initiate contact with an EEO 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. EEOC Regulation 29 C.F.R. § 1614.107(a)(2) provides for the dismissal of complaints where the complainant did not 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. 2021004092 3 Here, in claim 3, Complainant alleged his cubicle door was vandalized on January 30, 2020. Thus, he needed to contact an EEO Counselor about this cubicle vandalism on or before March 15, 2020, in order to have timely contacted an EEO Counselor and avoid a dismissal. The record reflects that Complainant first raised this allegation of January 2020 cubicle vandalism during a February 9, 2021 Motion to Amend another complaint, more than a year after the alleged vandalism occurred. This is well outside the 45-day time limit to contact an EEO counselor. EEOC Regulation 29 C.F.R. §1614.105(a)(2) allows the Agency or the Commission to 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. Although Complainant alleges that the Agency intentionally delayed processing his claim and letting him know his rights and deadlines, we do not find this argument persuasive. We find that due to Complainant's previous EEO actions, he knew or should have known of the 45-day time limitation for initiating counselor contact. See Balunsat v. Dep't of the Army, EEOC Doc 05880168 (Aug. 1, 1998). In addition, Complainant has also not provided any explanation for the extensive delay in bringing up his claim of cubicle vandalism and why he did not attempt to amend an earlier complaint or otherwise raise this until over a year after it occurred. Therefore, we find the dismissal for untimely EEO Counselor contact was proper. CONCLUSION 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. 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. 2021004092 4 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. 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. 2021004092 5 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 December 22, 2021 Date