[Redacted], Torie A., 1 Complainant,v.Alejandro N. Mayorkas, Secretary, Department of Homeland Security, Agency.

Equal Employment Opportunity Commission

Apr 25, 2022

Appeal No. 2022000578 (E.E.O.C. Apr. 25, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Torie A.,1 Complainant, v. Alejandro N. Mayorkas, Secretary, Department of Homeland Security, Agency. Appeal No. 2022000578 Agency No. HS-HQ-00355-2021 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's final decision dated October 6, 2021, 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. BACKGROUND During the period at issue, Complainant worked as a Human Resources Specialist, GS-13, at the Agency’s facility in Washington, D.C.2 On November 17, 2020, Complainant initiated EEO contact. Informal efforts to resolve her concerns were unsuccessful. On February 27, 2021, Complainant filed a formal complaint alleging that the Agency subjected her to discrimination on the basis of sex and/or in retaliation for prior protected EEO activity. On October 6, 2021, the Agency issued a final decision. The Agency determined that the formal 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. 2 Complainant asserts that she started working for another agency on July 19, 2020. 2022000578 2 1. On or around June 19, 2020, [the Agency] did not select Complainant for the Human Resources Specialist position, GS-14. 2. On June 25, 2020, [the Agency] placed Complainant on administrative leave without explanation. 3. On or around January 31, 2021, [the Agency] assigned an agency attorney to be the Agency representative at Complainant’s EEO mediation. The Agency dismissed claims (1) and (2) for untimely EEO counselor contact. The Agency reasoned that the alleged incidents occurred on June 19, 2020 and June 25, 2020, but that Complainant did not initiate EEO contact until November 17, 2020, outside of the applicable regulatory time period. The Agency dismissed claim (2) on the alternate grounds of raising the same claim in a prior EEO complaint, identified as Agency Case No. HS-HQ-00845-2020. The Agency found that claim (2) was fully investigated and the matter is before an EEOC Administrative Judge (AJ). The Agency dismissed claim (3) for failure to state a claim. The Agency reasoned that Complainant did not allege a harm or loss with respect to a term, condition, or privilege of employment. In addition, the Agency found that the alleged incident was not reasonably likely to deter Complainant or others from engaging in protected activity. The instant appeal followed. Regarding claim (1), Complainant asserts that she sought EEO counseling in November 2020 because she informally heard she was not going to be selected, but did not receive the formal notification that she had not been selected until March 2, 2021 (via email). Complainant therefore asserts that her EEO counselor contact regarding claim (1) is timely. Regarding claim (2), being placed on administrative leave, Complainant acknowledges that this matter is currently before an EEOC AJ. She states that although the AJ ordered the Agency to do so, the Agency has not provided any evidence to support her placement on administrative leave. Finally, regarding claim (3), Complainant asserts that this matter was a conflict of interest because the Agency representative for the scheduled mediation was an attorney that served on the interview panel with respect to the promotion at issue in claim (1). ANALYSIS AND FINDINGS Claim (1)-Promotion 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 2022000578 3 (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. The Agency improperly dismissed claim (1) for untimely EEO counselor contact. We acknowledge that in the formal complaint, Complainant stated that around June 19, 2020, her supervisor (S1) told her that she was not going to be selected for the position at issue and that she did not want Complainant to have to wait until human resources notified her. However, Complainant submits, on appeal, an email from USA Staffing, dated March 2, 2021, officially informing her that she was not selected for the position at issue in claim (1). Thus, we find that S1’s verbal communication to Complainant around June 19, 2020 was an informal notification regarding her non-selection. However, the official personnel action, when Complainant receive formal notification of her non-selection, did not occur until the March 2, 2021 email. See Amoldo P. v. Dep’t of the Army, EEOC Appeal No. 0120161967 (Dec. 22, 2016) (while complainant “had some unofficial notice that he might not be selected, the decision not to select him did not become effective until the agency issued its disposition notice…”). We therefore determine that Complainant’s November 17, 2020 EEO contact was timely regarding claim (1). Claim (2)-Placement on Administrative Leave The Agency properly dismissed claim (2), her placement on administrative leave, for alleging the same claim that was part of a prior EEO complaint. The regulation at 29 C.F.R. § 1614.107(a)(1) provides that the agency shall dismiss a complaint that states the same claim that is pending before or has been decided by the agency or Commission. Commission records reflect that the matter raised in claim (2), Complainant’s placement on administrative leave, was accepted for investigation, as part of a prior EEO complaint (Agency Case No. HS-HQ-00845-2020. Moreover, the matter is currently pending before an EEOC AJ in EEOC Hearing No. 570-2021-00768X.3 Claim (3)-Mediation Issues We find that the Agency properly dismissed claim (3) for failure to state a claim. In an attachment to her formal complaint, Complainant asserts that the Agency appointed an individual (A1) who served on the interview panel for the promotion at issue in claim (1) as the Agency representative for a scheduled mediation regarding the instant complaint. Complainant states 3 Because we affirm the Agency’s dismissal of claim (2) for the reason set forth herein, we need not address the Agency’s alternate dismissal grounds for claim (2). 2022000578 4 that A1 should have recused herself from this role and that A1 could have steered the case in favor of the Agency. Complainant states that the mediation was ultimately cancelled. These matters fail to state a claim because they concern issues arising from/centering around the mediation process. We note, for example, that “an agency’s decision not to offer EEO ADR for a particular case…cannot be made the subject of an EEO complaint.” EEOC Management Directive 110 for 19 C.F.R. Part 1614 (EEO MD-110) Ch 3 (III)(H) (Aug. 5, 2015).4 Accordingly, we AFFIRM the Agency’s dismissal of claims (2) and (3). However, we REVERSE the Agency’s dismissal of claim (1) and we REMAND this matter for further processing in accordance with the Order below. ORDER (E0618) The Agency is ordered to process the remanded claim (claim (1)) in accordance with 29 C.F.R. § 1614.108 et seq. 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. 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 4 While we affirm the Agency’s dismissal of claim (3), we remind the Agency that the Commission has stated that “[t]he agency’s official with settlement authority should not be the responsible management official or agency official directly involved in the case. This is not a general prohibition on those officials from being present at appropriate settlement discussions and participating, only that they are not the officials with settlement authority.” EEOC MD-110, Ch 1. (V). 2022000578 5 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. 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 2022000578 6 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 (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. 2022000578 7 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 April 25, 2022 Date