Stella B.,1 Complainant,v.Michael R. Pompeo, Secretary, Department of State, Agency.

Equal Employment Opportunity Commission

Sep 6, 2019

2019002794 (E.E.O.C. Sep. 6, 2019)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

Stella B.,1
Complainant,

v.

Michael R. Pompeo,
Secretary,
Department of State,
Agency.

Appeal No. 2019002794

Agency No. DOS-0088-19

DECISION

Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC
or Commission) from the Agency's decision dated March 15, 2019, dismissing her complaint of
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 in Office Automation
Clerk in the Agency’s Bureau of Intelligence and Research in Washington, D.C.

On November 5, 2018, Complainant initiated EEO contact alleging that the Agency
discriminated against her on the bases of sex (female) and reprisal for prior protected EEO
activity when:

(1) approximately September or October 2018, Complainant learned that the
Agency falsely accused her of improper actions regarding time and attendance
and it conducted a Diplomatic Security investigation;

(2) in October 2018, the Agency issued Complainant a Letter of Warning (LOW);
and

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.
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(3) since October 2017, the Agency subjected Complainant to hostile work
environment harassment, including preventing her from performing job duties
and using everyday processes, banning her from contacting Time and
Attendance and Payroll representatives, increasing surveillance of her in the
workplace, communicating with her without representation, making sexist
remarks and innuendo, resulting in her constructive discharge.

Throughout EEO counseling, Complainant asked that she remain anonymous for fear of
retaliation. On November 29, 2018, Complainant signed an Agreement to Extend EEO
Counseling Time Period by 60 days.

In an email dated December 12, 2018, the Agency’s Equal Employment Opportunity (EEO)
Manager issued Complainant a Notice of Right to File a Discrimination Complaint (NORF),
informing her that she had 15 calendar days of receipt to file a formal complaint.2 On January
28, 2019, the Agency received an EEO complaint from Complainant reiterating the
aforementioned claims of discrimination and harassment based on sex and reprisal.3

In a final decision dated March 15, 2019, the Agency dismissed Complainant’s complaint citing
29 C.F.R. § 1614.107(a)(2). The Agency stated, “[Complainant] has failed to engage in the pre-
complaint resolution process.” The Agency stated that the EEO Counselor attempted repeatedly
to resolve the matter and Complainant did not cooperate. The instant appeal from Complainant
followed.

On appeal, Complainant stated that the Agency improperly construed her refusal to waive her
right to anonymity as a failure to cooperate. Complainant stated that the Agency never informed
her that she failed to successfully complete the counseling stage and it issued a NORF informing
her of the right to file a formal complaint, which she did. Further, Complainant noted a
December 2018-January 2019 Federal government shutdown and stated, due to the shutdown,
the delay in filing her complaint should be excused.

2 As justification for the NORF, the EEO Manager cited an email from Complainant stating, “I
don’t feel ready to move forward and deal with informal counseling so I guess I have to drop out.
How long do I have to file a formal complaint?” Further, the EEO Manager cited Complainant’s
request that she not speak with management regarding her pre-complaint.

3 In her complaint, Complainant stated that the Federal government shutdown was December 22,
2018 through January 25, 2019, which prevented her from filing her formal complaint by
December 26, 2018. Complainant stated, during the shutdown, EEO representatives were not
available to respond to questions or receive correspondence.
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ANALYSIS AND FINDINGS

EEOC Regulation 29 C.F.R. § 1614.107(a)(2) requires an agency to dismiss a formal complaint
that fails to comply with the time limits contained in 29 C.F.R. § 1614.106(b). Section
1614.106(b) provides that a formal complaint must be filed within fifteen (15) days of receipt of
the notice required by 29 C.F.R. § 1614.105(d).

Here, when the EEO Counselor determined informal counseling was not possible, the Counselor
issued a NORF, which was appropriate. See Equal Employment Opportunity Management
Directive for 29 C.F.R. Part 1614 (EEO-MD-110), Chapter 2, VI.C. & VIII (as revised August
2015). The record discloses that the Agency emailed a NORF to Complainant on December 12,
2018, informing Complainant of the right to file a formal complaint within 15 days of receipt.
Complainant does not dispute that she received the NORF that same date. However,
Complainant explained that the government shutdown prevented submission of her complaint
within 15 calendar days of December 12 and noted that EEOC extended her original submission
deadline by 40 calendar days. Complainant filed her formal complaint on or before January 28,
2019, which is within the extended limitation period. Complainant’s formal complaint is timely
as “all deadlines that fell within December 22, 2018 through January 25, 2019 [were] extended
for 40 calendar days from the date of the original deadline.” What You Should Know About the
Impact of the Lapse in Appropriations on EEOC Timelines (2019),
https://www.eeoc.gov/eeoc/newsroom/wysk/impact_of_lapse.cfm.

CONCLUSION

Accordingly, we REVERSE the Agency's final decision dismissing Complainant's complaint and
REMAND the matter to the Agency for further processing consistent with this decision and the
Order below.

ORDER (E0618)
The Agency is ordered to process the remanded claims 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
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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
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 CFR § 1614.503(f) for enforcement by that agency.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0617)
The Commission may, in its discretion, reconsider the decision in this case if the Complainant or
the Agency submits a written request containing arguments or evidence which 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 to reconsider, with supporting statement or brief, must be filed with the Office of
Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. A party
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shall have twenty (20) calendar days of receipt of another party’s timely request for
reconsideration in 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). All requests and arguments must be submitted to the
Director, Office of Federal Operations, Equal Employment Opportunity Commission.
Complainant’s request may be submitted via regular mail to P.O. Box 77960, Washington, DC
20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. In the absence of a
legible postmark, the request to reconsider shall be deemed timely filed if it is received by mail
within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. The
agency’s request must be submitted in digital format via the EEOC’s Federal Sector EEO Portal
(FedSEP). See 29 C.F.R. § 1614.403(g). The request or opposition must also include proof of
service on the other party.
Failure to file within the time period will result in dismissal of your request for reconsideration
as untimely, unless extenuating circumstances prevented the timely filing of the request. Any
supporting documentation must be submitted with your 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 (R0610)
This is a decision requiring the Agency to continue its administrative processing of your
complaint. However, if you wish to file a civil action, you have the right to file such action in an
appropriate United States District Court within ninety (90) calendar days from the date that you
receive this decision. 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 filed your
appeal with the Commission. 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. 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).

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FOR THE COMMISSION:

______________________________ Carlton M. Hadden’s signature
Carlton M. Hadden, Director
Office of Federal Operations

September 6, 2019
Date