[Redacted], Tianna M., 1 Complainant,v.Gina M. Raimondo, Secretary, Department of Commerce (National Oceanic & Atmospheric Administration), Agency.

Equal Employment Opportunity Commission

Mar 29, 2023

Appeal No. 2023001626 (E.E.O.C. Mar. 29, 2023)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Tianna M.,1 Complainant, v. Gina M. Raimondo, Secretary, Department of Commerce (National Oceanic & Atmospheric Administration), Agency. Appeal No. 2023001626 Agency No. 54-2022-01423 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from an Agency final decision, dated January 3, 2023, dismissing a formal complaint alleging unlawful employment discrimination in violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. The Commission accepts the appeal in accordance with 29 C.F.R. § 1614.405. BACKGROUND During the relevant time, Complainant worked as a Lead Meteorologist, GS-13, at the Duluth Minnesota Weather Forecast Office, Central Region for the Agency’s National Weather Service. Believing that her former supervisor subjected her to a hostile work environment, Complainant contacted an EEO Counselor. Informal efforts to resolve Complainant’s concerns were unsuccessful. On December 12, 2022, Complainant filed a formal complaint based on disability. 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. 2023001626 2 The Agency framed the hostile work environment claim as comprised of the following events: 1. On June 21, 2021 [Supervisor] gave her a Letter of Caution; 2. On July 12, 2021, [Supervisor] gave her a Letter of Expectations; 3. In mid-October 2021, she was denied leave for vacation, with the explanation that she was not meeting [Supervisor’s] expectations; 4. On October 18, 2021, [Supervisor] failed her on “Critical Element 1” of her performance; 5. In March 2022, [Supervisor] provided feedback that “Critical Element 1” still needed work; and, 6. On June 8, 2022, [Supervisor] prior to moving on to work for another office, recommended that she be placed on a Performance Improvement Plan. The Agency dismissed the formal complaint for untimely EEO Counselor contact, pursuant to 29 C.F.R. 1614.107(a)(2). The Agency reasoned that Complainant did not contact the EEO Counselor until September 2, 2022, and based on Complainant’s description of events, the Agency determined that all alleged matters occurred more than forty-five days earlier (i.e., before July 19, 2022). 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 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. As an initial matter, we note that all of the events comprising the instant formal complaint are not represented in the Agency’s final decision. 2023001626 3 The formal complaint, Notice of Right to File a Discrimination Complaint, EEO Counselor’s Report all set describe the formal complaint as including the events in claims (2)2 and (6), but also included the following: On June 21, 2022, Acting Manager in Charge told you that you would be disciplined for Time and Attendance errors; and, On August 21, 2022, you learned that a fellow employee was not threatened for Time and Attendance errors like you were threatened. However, we do not find that Complainant has alleged a personal loss or harm to a term, condition, or privilege of her employment. Complainant contends she was threatened with discipline, and in support of that claim, that a co-worker was not similarly threatened. Complainant does not allege that she was issued any discipline or suffered any adverse action. 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). Therefore, these matters are dismissed for failure to state a claim. Moreover, we note that although the Agency identifies the date of EEO Counselor contact as September 2, 2022, the record reflects Complainant initiated contact on August 21, 2022. On that date, Complainant emailed the Agency’s EEO Office stating: “I am interested in finding out more information about filing an EEO complaint.” Four days later, presumably after not receiving a response, Complainant sent the same message again. The EEO office responded, on August 31, 2022, confirming Complainant’s contact and asking whether she had a general question or wanted to file an EEO complaint. Two days later, on September 2, 2022, Complainant said “I am interested in filing a complaint.” However, we find that her earlier, August 21, 2022, email was sufficient to reflect an intent to pursue the EEO process and is more properly considered the date of contact. Nevertheless, even when using the earlier date of August 21, 2022, we find that the allegedly discriminatory events occurred more than forty-five days earlier. Complainant does not contend that she was unaware of the time limit, and the Agency has provided evidence that Complainant received training regarding the EEO process and the forty-five day time limits in particular. On appeal, Complainant argues “I became aware of the discrimination when I had proof of the matter”. 2 These documents erroneously identify the Letter of Expectations as issued on July 12, 2022. A copy of the letter reveals it was issued on July 12, 2021, as stated in the Agency’s decision. 2023001626 4 She goes on to describe reaching out to a coworker, via email, the same day she contacted the EEO office. On August 25, 2022, the co-worker replied and Complainant asserted “I finally had proof. . .” Waiting until one has proof of discrimination before initiating a complaint can result in untimely Counselor contact. Bracken v. United States Postal Service, EEOC Request No. 05900065 (July 6, 1988). We find that Complainant reasonably suspected, or should have suspected, discrimination more than forty-five days before her August 21, 2022 contact. She has not provided sufficient justification for extending or tolling the time limit. Therefore, the Agency’s dismissal was proper. 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 2023001626 5 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. 2023001626 6 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