[Redacted], Larissa E., 1 Complainant,v.Lloyd J. Austin III, Secretary, Department of Defense (Defense Commissary Agency), Agency.

Equal Employment Opportunity Commission

Mar 29, 2023

Appeal No. 2023000904 (E.E.O.C. Mar. 29, 2023)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Larissa E.,1 Complainant, v. Lloyd J. Austin III, Secretary, Department of Defense (Defense Commissary Agency), Agency. Appeal No. 2023000904 Agency No. DeCA-00139-2022 DECISION Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's final decision dated August 19, 2022, dismissing her 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 During the period at issue, Complainant worked as a Sales Store Worker at the Agency’s Fort Myer Commissary in Virginia. On August 17, 2022, Complainant filed a formal complaint alleging that the Agency subjected her to discrimination on the bases of race (African American), color (Black), disability, and reprisal for prior protected EEO activity (contacting the EEO Office). In its final decision, dated August 19, 2022, the Agency determined that Complainant’s complaint was comprised of the following claims: 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. 2023000904 2 1. Beginning in June 2020 to October 15, 2021, [two named Agency officials] harassed [Complainant] (i.e., yelling, rude emails, threatening comments, over scrutinizing “call-ins” intentionally delaying Family Medical Leave processing, accusations of “stealing a credit card”, preventing [her] ability to exit the office). 2. On or about October 9, 2021, [a named Agency official] threatened [her] with Absence Without Leave (AWOL). 3. On or about October 15, 2021, [she] resigned from [her] position as a Sales Store Worker, GS-0291-03, employee of the [Agency] assigned to the Fort Myer Commissary. The Agency dismissed Complainant’s complaint for untimely EEO Counselor contact. The Agency reasoned that Complainant did not initiate EEO contact until June 24, 2022, more than 45 days from her resignation on October 15, 2021. The Agency noted that in March 2021, Complainant contacted the Agency’s EEO Office, but did not pursue an EEO complaint at that time. The instant appeal followed. On appeal, Complainant requests that we reverse the Agency’s final decision dismissing her complaint. Complainant asserts that the Agency’s final decision improperly provided her appeal rights to the Merit Systems Protection Board (MSPB) and that the MSPB dismissed her appeal for lack of jurisdiction. Complainant asserts that she initially contacted the Agency’s EEO Office in March 2021, but did not file a formal complaint due to intimidation and fear of reprisal. Complainant asserts that she contacted the EEO Office again in September 2021. Complainant asserts that she also did not file a formal complaint during this time due to fear of retaliation. Complainant asserts that she was under duress when she resigned on October 15, 2021. Complainant further asserts that in October 2021, after her resignation (alleged constructive discharge), that she contacted the EEO Office, but no one responded to her calls and that the EEOC provided her with the Agency’s EEO Office number which she contacted on June 24, 2022. In response, the Agency requests that we affirm its final decision dismissing Complainant’s complaint. The Agency reiterates that Complainant did not initiate EEO contact with the intent to pursue the EEO process until June 24, 2022. The Agency asserts that the record contains documentation that information regarding the applicable time limit and contact information were on display in the breakroom at Complainant’s facility during the relevant time period. The Agency further asserts that Complainant’s appeal to the Commission’s Office of Federal Operations (OFO) is untimely but acknowledges that it improperly provided Complainant appeal rights in the final decision to the MSPB rather than to the EEOC. 2023000904 3 ANALYSIS AND FINDINGS As an initial matter, we find that Complainant’s appeal is properly before us. The record reflects that the Agency’s final decision improperly provided Complainant appeal rights to the MSPB rather than the EEOC. Complainant subsequently filed an appeal with the MSPB. On October 20, 2022, the MSPB issued an initial decision dismissing Complainant’s appeal for lack of jurisdiction. Complainant subsequently filed the instant appeal with EEOC. Based on the foregoing, including the Agency improperly providing Complainant appeal rights to the MSPB rather than the EEOC, we find that this matter is now properly before us. We further find that the Agency properly dismissed Complainant’s formal complaint for untimely EEO Counselor contact. 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 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. Complainant’s resignation (alleged constructive discharge) occurred on October 15, 2021, but Complainant did not initiate EEO contact until June 24, 2022, outside of the applicable time period. While Complainant asserts that she initiated EEO contact in March 2021 and September 2021, she acknowledges, in her statement on appeal, that she did not pursue filing an EEO complaint due to fear or retaliation. The Commission has previously held that fear of reprisal is an insufficient justification for extending the applicable time limitation for contacting an EEO Counselor. See Duncan v. Dep’t of Veteran Affairs, EEOC Request No. 05970315 (July 10, 1998). To the extent Complainant asserts that she tried contacting the Agency’s EEO Office after her resignation in October 2021 and she was not able to reach the Agency’s EEO Office until EEOC provided her the number in June 2022, we are not persuaded by this assertion.2 2 The record is devoid of documentation reflecting that Complainant initiated EEO contact with the intent to pursue the EEO process, subsequent to her resignation on October 25, 2021 and prior to her June 24, 2022 EEO contact. 2023000904 4 The Agency, with its response brief, provides documentation, that the Agency had on display in the employee breakroom at Complainant’s facility, during the relevant time period, an EEO poster setting forth the 45-day time limit to initiate EEO contact. In addition, the EEO poster sets forth various ways to contact the Agency’s EEO Office: phone number, email and mailing address. Based on the foregoing, we find that Complainant has not provided sufficient justification for extending the applicable time limit. CONCLUSION Accordingly, we AFFIRM the Agency’s final decision dismissing Complainant’s complaint. 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). 2023000904 5 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. 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 29, 2023 Date