Tristan S.,1 Complainant,v.Dr. Mark T. Esper, Secretary, Department of Defense (National Geospatial-Intelligence Agency), Agency.

Equal Employment Opportunity Commission

Oct 2, 2020

2020002626 (E.E.O.C. Oct. 2, 2020)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Tristan S.,1 Complainant, v. Dr. Mark T. Esper, Secretary, Department of Defense (National Geospatial-Intelligence Agency), Agency. Appeal No. 2020002626 Agency No. NGA-0013-2020 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's decision dated February 4, 2020, dismissing his 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., and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Police Officer at the Agency’s Office of Protective Services facility in Springfield, Virginia. On January 8, 2020, Complainant filed a formal complaint alleging that the Agency subjected him to discrimination on the bases of race, disability, and reprisal for prior protected EEO activity when: 1. On August 8, 2019, a Director, Office of Protective Services (Director1), informed Complainant that she was unable to provide a reasonable accommodation for him and issued him notice that his position would no longer be held for him effective December 6, 2019. 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. 2020002626 2 2. On May 20, 2019, Complainant received a Reasonable Accommodation of Last Resort letter from a Director, Office of Protective Service (Director2) indicating there were no reasonable accommodation assignments available to meet Complainant’s needs and that the Human Development Directorate (HD) and Security Police Installation Office (SIP) would start the process of removing Complainant from federal service. 3. On January 24, 2019, the Chief of Staff (COS), SIP, informed Complainant that previously submitted medical documentation could not be located and requested a significant amount of additional medical documentation from Complainant. 4. In or around August 2018, Complainant was removed from his limited-duty assignment in SIOEB (Quality Assurance/Facilities) by the Major, SIP, and told to report back to the police wing for a different assignment. The Agency dismissed the entire complaint pursuant to 29 C.F.R. § 1614.107(a)(2), for untimely filing of the formal complaint. It also dismissed claim (1) pursuant to 29 C.F.R. § 1614.107(a)(5), for failure to state a claim, and claims (2), (3), and (4) pursuant to 29 C.F.R. § 1614.107(a)(2) for untimely EEO Counselor contact. The instant appeal followed. On appeal, Complainant argues that the formal complaint was timely. He asserts that his attorney representative did not receive the Notice of Right to File a Formal Complaint (“Notice”) because she had been out of the country for the Christmas holiday and, starting at the beginning of the year, she was no longer employed by her law firm. Complainant also asserts that he first saw the Notice on December 24, 2019, and argues that this is when the 15- day time frame should start to run. ANALYSIS AND FINDINGS The regulation set forth at 29 C.F.R. § 1614.107(a)(2) states, in pertinent part, that an agency shall dismiss a complaint which fails to comply with the applicable time limits contained in 29 C.F.R. § 1614.106, which, in turn, requires the filing of a formal complaint within fifteen (15) days of receiving the notice of the right to do so. The regulation set forth at 29 C.F.R. § 1614.605(d) provides that, unless the complainant states otherwise in writing, after the agency has received written notice of the name, address and telephone number of a representative for the complainant, all official correspondence shall be with the representative with copies to the complainant. When the complainant designates an attorney as representative, service of all official correspondence shall be made on the attorney and the complainant, but time frames for receipt of materials shall be computed from the time of receipt by the attorney. Id. Here, the EEO Counselor’s record indicates that the Agency was advised of Complainant’s legal representative’s name, address and telephone number. Complainant does not suggest that he ever instructed the Agency not to direct correspondence to his representative. FedEx tracking documents of record indicate that Complainant’s attorney’s office signed for the Notice on 2020002626 3 December 20, 2019. The 15th day following December 20, 2019 was Saturday, January 4, 2019. Since that day was a Saturday, Complainant had until Monday, January 6, 2020 to file the formal complaint. The record shows that Complainant signed the formal complaint on January 7, 2020, and it was faxed to the Agency on January 8, 2020, two days after the deadline to file the complaint. Under the circumstances presented here we find Complainant’s filing of his formal complaint was untimely and he has not offered adequate justification to warrant an extension of the time limit for filing the complaint. Accordingly, the Agency's final decision dismissing Complainant's complaint is AFFIRMED. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0620) The Commission may, in its discretion, reconsider this appellate decision if the 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, 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. 2020002626 4 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 October 2, 2020 Date