[Redacted], Adena J, 1 Complainant,v.Christine Wormuth, Secretary, Department of the Army, Agency.

Equal Employment Opportunity Commission

May 10, 2022

Appeal No. 2022001812 (E.E.O.C. May. 10, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Adena J,1 Complainant, v. Christine Wormuth, Secretary, Department of the Army, Agency. Appeal No. 2022001812 Agency No. ARHQOSA21AUG02770 DECISION Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's final decision dated November 9, 2021, dismissing a formal complaint of 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 for the Agency in Washington, D.C. in a term Program Analyst position ending in August 2021. According to the EEO Counselor’s Report, Complainant initiated EEO contact on August 27, 2021. On October 26, 2021, Complainant filed a formal complaint alleging that the Agency subjected her to discrimination based on race, sex, and color . On November 9, 2021, the Agency issued the instant final decision. The Agency determined that Complainant’s complaint was comprised of the following claims: a. On August 16, 2021, [Complainant was] selected and accepted a permanent GS-0343 Management Analyst Position within Force Development Communication (FDC), after having an office call with [the named G8 Commanding General] despite [her] current position being vacant since October 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. 2 2022001812 b. On July 29, 2021, [Complainant] received notice from a [named Agency official] that her term employment would be terminated on August 18, 2021, based on [her] declination of an official offer of a GS-0343014 permanent position with the Directorate of Material; c. On June 20, 2021, [Complainant] found out that [she was] not selected for a merit promotion GS-0343-14 Management Analyst position within [FDC] by management where a white female was selected; d. On April 9, 2021, [a named Agency official] promised [her] she would be considered for the next GS-14 Management Analyst position to be hired in [her] division; but she was not selected; e. On March 1, 2021, [she] found out that two white males, former contractors, were selected for non-competitive GS-14 Management Analyst permanent positions within Force Development Communication (FDC). The Agency dismissed claims (a) and (b) for failure to state a claim. The Agency reasoned that in claim (a), Complainant was selected and accepted a GS-14 Management Analyst position; thus, she did not experience a harm or loss with respect to her employment. Regarding claim (b), the Agency reasoned that Complainant’s term position was extended until September 21, 2021, and that Complainant accepted a permanent position on August 16, 2021 (and thus she did not experience a loss in employment). The Agency dismissed claims (c), (d), and (e) for untimely EEO Counselor contact. The Agency reasoned that Complainant initiated EEO contact on August 27, 201, outside of the applicable time period. In addition, the Agency reasoned that Complainant received EEO training covered the applicable time limit. The instant appeal followed. On appeal, Complainant asserts, regarding the dismissal for untimely EEO Counselor contact, that the Agency “doesn’t have a clear process for filing a complaint.” Complainant further asserts that she had to contact several government employees to submit her complaint. In addition, Complainant asserts that she did not receive the final agency decision until she reached out to the Agency’s EEO Office on January 20, 2022. In response, the Agency requests that we affirm its final decision dismissing Complainant’s complaint. The Agency asserts that Complainant’s appeal is untimely. The Agency asserts that the final decision was sent to Complainant on November 9, 2021 via email. The Agency EEO Office did not receive any delivery notification that there had been delivery problems to Complainant’s email address. The Agency states Complainant did not file her appeal until on or about February 13, 2022, outside of the applicable time period. The Agency sets forth that even if OFO finds Complainant’s appeal to be timely filed, OFO should affirm its final decision dismissing Complainant’s complaint on procedural grounds. 3 2022001812 ANALYSIS AND FINDINGS Timeliness of Complainant’s Appeal As an initial matter, we find Complainant’s appeal to be timely filed. We acknowledge that the record contains a copy of an email from an EEO Specialist dated November 9, 2021 to Complainant which contained the Agency’s final decision. However, there is no documentation that Complainant actually received the Agency’s final decision on that date. In addition, the record contains a copy of an email from Complainant to the Agency dated January 20, 2022 requesting the status of her EEO complaint. In response, the Agency’s Branch Chief of Compliance, Complaints and Resolution Management Division stated in an email to Complainant dated January 20, 2022, that she was not sure why Complainant did not receive the email on November 9, 2021 containing the final agency decision. This January 20, 2022 email from the Branch Chief included a copy of the final decision. Furthermore, the Branch Chief, in another email dated January 20, 2022, set forth that Complainant informed her that she received the final decision on January 20, 2022. Based on the foregoing, we find that Complainant received the final agency decision on January 20, 2022 and thus, her February 14, 2022 appeal is timely. Dismissal for Failure to State a Claim-Claims (a) and (b) The regulation set forth at 29 C.F.R. § 1614.107(a)(1) provides, in relevant part, 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 he or she has been 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. Diaz v. Dep’t of the Air Force, EEOC Request No. 05931049 (Apr. 21, 1994). The Agency improperly dismissed claim (a) for failure to state a claim. A review of the pre- complaint documents and formal complaint reflect that Complainant is alleging that the permanent position that she eventually was offered and accepted was opened for several years prior to the Agency offering to her. Thus, we find Complainant is alleging that the Agency delayed in offering her the permanent position, which she ultimately accepted, based on her protected classes. Thus, she has raised an actionable claim. We determine, however, that the Agency properly dismissed claim (b). While Complainant alleges that she initially received notification that her term position would end on August 18, 2021, Complainant, according to the EEO Counselor’s Report, acknowledges that she was subsequently notified that her position was extended into September 2021,2 and that she accepted a permanent 2 The record also contains a Notification of Personnel Action form for Complainant reflecting that there was an extension of her term appointment through September 17, 2021. 4 2022001812 position on August 16, 2021. Thus, we find that Complainant has not alleged a harm or loss with respect to a term, condition, or privilege of employment. Dismissal for Untimely EEO Counselor Contact-Claims (c)-(e) 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 a 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. EEOC Regulations provide that the agency or the Commission shall extend the time limits when the individual shows that she 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 her control from contacting the Counselor within the time limits, or for other reasons considered sufficient by the agency or the Commission. The Agency improperly dismissed claims (c)-(e) for untimely EEO Counselor contact. The Agency found that Complainant initiated contact on August 27, 2021, outside of the applicable time period. However, on appeal, Complainant argues that the Agency does not have a clear process for filing a complaint and that she had to contact several Agency officials to file her complaint. We acknowledge that the record contains a training transcript for Complainant. The training transcript reflects that Complainant attended EEO Anti-Harassment and No Fear Act trainings on October 2, 2017 and October 2, 2015. However, the record does not contain documentation (such as an affidavit from the trainer and/or copies of the materials from the trainings) reflecting that the applicable time limit and the proper EEO contact were covered during these trainings. Based on the foregoing, we extend the applicable time period. Accordingly, we AFFIRM the Agency’s dismissal of claim (b). However, we REVERSE the Agency’s dismissal of the remainder of the complaint and we REMAND these matters to the Agency for further processing in accordance with the ORDER below. ORDER (E0618) The Agency is ordered to process the remanded claims (claims (a), (c), (d), and (e)) 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. 5 2022001812 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. 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. 6 2022001812 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 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). 7 2022001812 COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION (T0610) This decision affirms the Agency’s final decision/action in part, but it also requires the Agency to continue its administrative processing of a portion of your complaint. 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 on both that portion of your complaint which the Commission has affirmed and that portion of the complaint which has been remanded for continued administrative processing. 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 your appeal with the Commission, until such time as the Agency issues its final decision on your complaint. 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. 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 May 10, 2022 Date