[Redacted], Brian M., 1 Complainant,v.Dave Uejio, Acting Director, Consumer Financial Protection Bureau, Agency.

Equal Employment Opportunity Commission

Mar 2, 2022

Appeal No. 2022000010 (E.E.O.C. Mar. 2, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Brian M.,1 Complainant, v. Dave Uejio, Acting Director, Consumer Financial Protection Bureau, Agency. Appeal No. 2022000010 Agency No. CFPB-0015-2021 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's decision dated September 8, 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. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as an Information Technology Specialist, CN-2210-53, at the Agency. On August 7, 2021, Complainant filed a formal complaint alleging that the Agency subjected him to discrimination and a hostile work environment on the bases of race (Asian Indian) and national origin (Indian) when: 1. On September 28, 2017, he was forced to resign in lieu of termination during his probationary period. 2. From January 1, 20172 to September 12, 2017, his first line supervisor, Supervisory IT Specialist, and second line supervisor, Deputy Chief Information Officer, subjected him to ongoing harassment, including but not limited to: humiliated him in front of his co- 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. 2022000010 2 workers, intentionally and repeatedly criticized his work products, discredited his extensive experience in information systems operations and gave him conflicting and unclear instructions and answers to his questions. The Agency dismissed these claims pursuant to 29 C.F.R. § 1614.107(a)(2) for untimely EEO counselor contact. Complainant filed the instant appeal. On appeal, Complainant contends he was unable to contact an EEO counselor any sooner because he feared retaliation and negative reference checks while he sought new employment. He states that he could not risk making a formal complaint until he had found a stable job. The Agency contends on appeal that the complaint was properly dismissed for untimely EEO Counselor contact because Complainant waited several years after the forty-five (45) day time limit to contact an EEO counselor, Complainant does not dispute that he was aware of the time limit for contacting an EEO counselor, and he cannot reasonably be deemed to fall within any of the circumstances that might justify an extension of the time limit. The Agency argues that fear of retaliation is an insufficient justification for extending the time limit and that the EEOC has also held the utilization of alternative agency proceedings and other remedial processes does not toll the time limit for contacting an EEO counselor. ANALYSIS AND FINDINGS 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 comply with the time limits set forth at 29 C.F.R. §1614.105. The Commission also has consistently held that a complainant must act with due diligence in the pursuit of his EEO claim or the doctrine of laches may apply. See O'Dell v. Dep't of Health and Human Services, EEOC Request No. 05901130 (Dec. 27, 1990). The doctrine of laches is an equitable remedy under which an individual's failure to pursue diligently his course of action could bar his claim. Id. Here, all of the allegedly discriminatory actions occurred between January 1, 2017 and September 28, 2017. Thus, Complainant had until November 12, 2017 to timely contact an EEO Counselor. The record reflects that Complainant contacted his U.S. Senator’s office on October 7, 2017 to file a complaint against the Agency, and Complainant also states the he contacted the National Employees Treasury Union. However, he did not contact an EEO counselor until May 3, 2021, more than three and a half years after the allegedly discriminatory contact. Complainant does not argue that he was unaware of the time limits or that he did not suspect discrimination earlier. Instead, he states that he was unable to contact an EEO counselor sooner due to a fear of reprisal and negative job references from the Agency. 2022000010 3 While we are sympathetic that Complainant’s fear of reprisal may have been genuinely held, the Commission has repeatedly held that mere fear of reprisal is an insufficient justification for extending the time limitation for contacting an EEO Counselor. See Nick S. v. Dep’t of Commerce, EEOC Appeal No. 2021002469 (Jul. 27, 2021). Here, especially in light of his willingness to contact other entities about his treatment by the Agency, Complainant has not provided sufficient justification to warrant tolling of the time limits. His EEO Counselor contact was not timely. As such, the Agency correctly dismissed the complaint. CONCLUSION The Agency's final decision dismissing the formal complaint is AFFIRMED for the reasons discussed above. 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 2022000010 4 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. The court has the sole discretion to grant or deny these types of requests. 2022000010 5 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 March 2, 2022 Date