[Redacted], Johana S., 1 Complainant,v.Frank Kendall, Secretary, Department of the Air Force, Agency.

Equal Employment Opportunity Commission

Jan 26, 2023

Appeal No. 2022004242 (E.E.O.C. Jan. 26, 2023)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Johana S.,1 Complainant, v. Frank Kendall, Secretary, Department of the Air Force, Agency. Appeal No. 2022004242 Agency No. 9W4W2200331 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's final decision dated July 7, 2022, dismissing a formal 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 During the period at issue, Complainant provided services to the Agency as a Cyber Security Manager through a contract that the Agency entered into with Raytheon (contractor). On June 3, 2022, Complainant filed a formal complaint alleging that the Agency subjected her to discrimination based on race (African American). In its final decision, the Agency framed Complainant’s claims in the following fashion: 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. 2022004242 2 Was Complainant discriminated against on the basis of race (African American) and subjected to harassment, when: a) In or around June 2021, the Agency, by and through the Air Force Office of Special Investigations (AFOSI) Special Projects (SP) Det 8’s representation removed Complainant’s local approval authority privileges. b) On or around August 10, 2021, the Agency, by and through [a named Special Agent-in-Charge] issued Complainant a Special Access Program Suspension Memorandum for alleged multiple security violations, despite Complainant not being aware nor informed of any security violations. c) On or around August 12, 2021, [a named Special Agent-in-Charge] informed Complainant that the AFOSI’s investigation had been completed and Complainant’s Special Access Program access had been permanently suspended. [The Special Agent-in-Charge] further stated that he was aware that Complainant had not been responsible for the violations that formed the basis for the suspension, but the actions would continue. d) On or around September 15, 2021, the AFOSI [named Program Security Representative] improperly raised the classification of Complainant’s appeal regarding the Special Access Program access to a higher classification level than warranted for a second time and issued Complainant a Security Violation, despite later reducing the classification level to unsecured. e) Beginning on or about October 4, 2021 and continuing through May 16, 2022, due to [named Special Agent in Charge] suspending her Special Program access, Complainant’s record was updated to reflect that she was removed from her managerial position and was no longer permitted to work on Air Force assignments. f) In or around December 2021, the Department of Defense Inspector General Attorney informed Complainant that AFOSI had improperly withheld her appeal documentation resulting in its untimely submission. The Agency dismissed the formal complaint, in its entirety, for failure to state a claim reasoning, “Complainant is not considered an employee of the Agency and was employed by Raytheon…Both Complainant and an Agency Responding Management Official indicated Complainant’s actual employer (Raytheon) controlled Complainant’s work schedule, assignments, and hours, and pays her salary and benefits.” 2022004242 3 The Agency also dismissed the formal complaint, in its entirety, on the alternate grounds of untimely EEO Counselor contact. In addition, the Agency dismissed claim (e) for not being brought to the attention of the EEO Counselor and not being like or related to a matter brought to the attention of the EEO Counselor. Moreover, the Agency found that each of the claims involving the Special Access Program should be dismissed as a collateral attack on an administrative process. The instant appeal followed. On appeal, Complainant, through her attorney, requests that we reverse the Agency’s final decision dismissing her complaint. Regarding the Agency’s dismissal that Complainant was not an Agency employee, Complainant argues that the Agency had exclusive control over the means and manner of her performance of her job duties when it stated she was unable to perform her tasks under the previous Assured File Transfer procedures. Regarding the Agency’s dismissal for untimely EEO Counselor contact, the Agency argues that she “informed an EEO individual of her intent to file a complaint against the Agency on February 8, 2022.” Complainant further asserts that she is raising a hostile work environment claim and that, therefore, the entire claim is timely if one incident comprising the claim is timely. Complainant further asserts that these matters are not a collateral attack on an administrative process because she is not questioning the findings of the Special Access Program appeal process. In response, the Agency requests that we affirm its final decision dismissing Complainant’s complaint. Regarding the dismissal for untimely EEO Counselor contact, the Agency asserts that Complainant did not initiate EEO contact until February 22, 2022. The Agency reasoned that on November 30, 2021, Complainant was informed via the DoD Hotline Response that any discrimination complaint must be routed through the Agency’s EEO Office. Thus, the Agency set forth that Complainant was aware in November 2021, that she could contact the Agency’s EEO Office, but she chose instead to wait until February 22, 2022, to do so. 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 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 he was not notified of the time limits and was not otherwise aware of them, that he did not know and reasonably should not have known that the discriminatory matter 2022004242 4 or personnel action occurred, that despite due diligence he 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. We find that the Agency properly dismissed Complainant’s complaint, in its entirety, for untimely EEO Counselor contact. We find that Complainant initiated EEO Contact on February 22, 2022.2 The most recent alleged incident comprising Complainant’s hostile work environment claim occurred in December 2021 (incident (f)). Thus, even using the date of December 31, 2021 for this incident, Complainant’s February 22, 2022 EEO contact is untimely. We also concur with the Agency’s response brief that incident (e), Complainant being removed from providing services to the Air Force and from her management position with the contractor were discrete acts rather than a continuing violation. Thus, this incident which occurred on October 4, 2021, more than 45 days before her EEO contact on February 22, 2022, is untimely. Complainant alleges that her hostile work environment claim is timely because she initiated EEO contact on February 8, 2022 to an individual logically connected to the EEO process, we disagree. The record contains a signed statement from Complainant dated March 7, 2022. Therein, Complainant stated that she made a complaint with the U.S. Equal Opportunity Employment Commission (EEOC) on November 29, 2021 and was interviewed by the EEOC on February 8, 2022. She further asserted that she was not aware she needed to contact the Agency’s EEO Office until February 22, 2022, when EEOC informed her of such. Complainant also submits, on appeal, an affidavit. Therein, she asserts that she was informed on February 8, 2021, during an interview, that she needed to contact a “separate [Agency] EEO office” for a complaint against the Agency. Complainant, in this affidavit, further asserts that she was not aware that the Agency had a separate EEO Office until this time. The record, however, does not support this assertion. The record contains a response from the DoD Office of Inspector General (OIG) Hotline dated November 30, 2021, after Complainant submitted a complaint to DoD OIG. Therein, the response indicated that discrimination complaints must be filed with “your Agency or service’s EEO or EO Office within the timeframes specified in EEO guidelines or you may forfeit your rights…” (emphasis added). This response further provided a link to the website for DoD’s Office of Management and Equal Opportunity and a link to the website for the EEOC for general information on the EEO process.3 Based on the foregoing, we find that as of November 29, 2021, Complainant was aware that to initiate an EEO complaint against the Air Force, she should contact the Agency’s EEO Office to initiate a complaint. Based on the foregoing, we do not find that Complainant presented sufficient justification to extend the applicable time limit. 2 The record contains a Contact Form indicating Complainant’s initial contact with the Agency’s EEO Office occurred on February 22, 2022. 3 While The DoD OIG Hotline response provided a link to the website for the EEOC for general information on the EEO process, the OIG Hotline response clearly set forth that discrimination complaints against the Agency must be filed with the Agency’s EEO Office (it did not set forth that EEO complaints against the Agency could be filed with the EEOC). 2022004242 5 Accordingly, for the reason set forth herein, we AFFIRM the Agency’s final decision dismissing Complainant’s complaint.4 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. 4Because we affirm the Agency’s dismissal for the reason set forth herein, we need not address the Agency’s alternate grounds for dismissal. 2022004242 6 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. 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 January 26, 2023 Date