Cherilyn C,1 Complainant,v.Christopher C. Miller Acting Secretary, Department of Defense (Defense Contract Management Agency), Agency.

Equal Employment Opportunity Commission

Nov 19, 2020

2020004631 (E.E.O.C. Nov. 19, 2020)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Cherilyn C,1 Complainant, v. Christopher C. Miller Acting Secretary, Department of Defense (Defense Contract Management Agency), Agency. Appeal No. 2020004631 Agency No. P8-20-0009 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's final decision dated June 25, 2020, 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 During the period at issue, Complainant worked as a Contract Administrator, Grade GS-11, at the Defense Contract Management Agency (DCMA) Carson at Western Region facility in Los Angeles, California. On October 21, 2019, Complainant initiated EEO Counselor contact. Informal efforts at resolution were not successful. On February 18, 2020, Complainant filed a formal complaint alleging that the Agency subjected her to discrimination based on race and color. 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 2020004631 On June 25, 2020, the Agency issued the instant final decision. Therein, the Agency determined that the formal complaint was comprised of four claims, which it identified as follows: 1. From 2015 to April 2019, Complainant’s immediate supervisor harassed her and treated her differently than others. Complainant provided the following incidents to support her claim: a. In 2015, Complainant’s immediate supervisor (hereinafter S1) stated that she never liked you or your voice when you were in the North Hills office, DCMA Los Angeles; b. In September 2015, S1 did not select Complainant for a voluntary reassignment, Vacancy # 1414266, GS-1102-11, Contract Administrator position in Carson, CA; c. On November 9, 2016, May 5, 2017, September 2, 2017, September 12, 2017, and October 4, 2017, S1 yelled at Complainant; d. In 2016, S1 did not give Complainant a monetary performance award; e. On April 17, 2017, S1 denied Complainant’s request for telework; f. On May 5, 2017, and May 11, 2018, S1 called and yelled at Complainant regarding her work on Complainant’s Regular Day Off (RDO); g. On May 9, 2017, S1 called Complainant into S1’s office, yelled at her and S1 told Complainant she did not appreciate how Complainant talked to her; h. On June 26, 2017, S1 issued Complainant a Letter of Warning and Instruction (LOWI) citing deficiency in performance; i. On October 4, 2017, during a performance review meeting, Ms. Dubose rated you on two contracts that you did not administer; j. In August 2018, during an office meeting, S1 made threatening statements and said S1 knows the Crips gang and said not to mess with her; k. On May 11, 2018, S1 called Complainant on the telephone and yelled at her on Complainant’s RDO, questioned whether she requested leave and inquired about a project S1 was working on; l. On October 28, 2018, S1 contacted Complainant while she waw teleworking and required her to provide the status of the Integrated Workload Management System report with a very short suspense; m. In 2018, during a meeting with S1 and S1’s supervisor, the Supervisory Contract Specialist, (Japanese American, color unspecified), S1 lied and began to scream; and n. In April 2019, S1 told Complainant that S1 did does not care for her. 3 2020004631 2. On November 5, 2019, a coworker (race and color unspecified) informed Complainant that S1 asked about a conversation the co-worker had with Complainant; 3. On November 5, 2019, a co-worker expressed disdain with leadership and the favoritism S1 shows toward some employees; and 4. On January 21, 2020, the Alternative Dispute Resolution (“ADR”) Manager (race and color unspecified) did not schedule a mediation for Complainant's complaint, and indicated that it was not required. On June 25, 2020, the Agency issued a final decision dismissing all of Complainant’s claims. The Agency dismissed Claim 1.a. through Claim 1.n for failure to comply with the applicable time limit. Specifically, the Agency determined that the latest matter Complainant alleged to be discriminatory occurred no later than April 30, 2019. The Agency stated that Complainant failed to comply the with 29 C.F.R. 1614.105(a) in that Complainant did not initiate contact with an EEO Counselor until October 21, 2019, which was more than 45 calendar days after April 2019. The Agency dismissed Claim 2 and Claim 3 for failure to state a claim under 29 C.F.R. 1614.107(a)(1). The Agency dismissed Claim 4 in accordance with 29 C.F.R. 1614.107(a)(8) because Claim 4 had merely stated Complainant’s dissatisfaction with the Agency’s informal processing of her other claims. The instant appeal followed. ANALYSIS AND FINDINGS Claim 1 EEOC Regulation 29 C.F.R. § 1614.105(a)(1) requires that complaints of discrimination should be brought to the attention of an EEO Counselor within 45 days of the date of the matter alleged to be discriminatory or, in the case of a personnel action, within 45 days of the effective date of that action. This Commission applies “reasonable suspicion” standard (as opposed to a “supportive facts" standard) to determine when the 45-day limitation period is triggered. Howard v. Dep’t of the Navy, EEOC Request No. 05970852 (Feb. 11, 1999). Thus, the time limitation is triggered as soon as a complainant reasonably suspects discrimination. Time limits shall be extended when an individual shows that she was not notified of the time limits or unaware of them, or that she reasonably did not know that the discriminatory matter or personnel action occurred, or that despite due diligence, circumstances beyond her control prevented timely EEO Counselor contact, or for other reasons considered sufficient by an agency or EEOC. 4 2020004631 The record revealed that that the alleged harassment described in Claim 1 occurred during period began in from 2015 with the latest incident occurring in April 2019. Complainant did not initiate contact with an EEO Counselor until October 2019, which was well-beyond the 45-day limitation period. Complainant has failed to present adequate justification pursuant to 29 C.F.R. §1614.105(a)(2), for extending the limitation period beyond 45 days. Therefore, we find the Agency’s dismissal of Claim 1 was proper. Claim 2 and Claim 3 Regarding Claims 2 and 3, the Commission finds that the Agency dismissals were in accordance with EEOC Regulation 29 C.F.R. § 1614.107(a)(1). Here, Complaint failed to state a claim under the because she did not show how a coworker sharing complainants about management, or a co- workers’ statements about disdain with leadership, caused COmplianant an employment loss for which there was a remedy under EEOC’s regulations. Diaz v. Dep’t of the Air Force, EEOC Request No. 05931049 (Apr. 21, 1994). Finally, we recognize that the matters raised in Claims 2 and 3 were timely raised with an EEO Counselor. However, because they are not viable claims, they are insufficient to render timely the matters addressed in Claim 1, discussed above. Claim 4 The Agency dismissed Claim 4 pursuant to EEOC Regulation 29 C.F.R § 1614.107(a)(8). However, we determine that this claim is more properly analyzed in terms of whether it states a claim, pursuant to EEOC Regulation 29 C.F.R. § 1614.107(a)(1). As with our analysis above of Claims 2 and 3, we determine that this matter fails to state a claim, and not being a viable claim, is likewise insufficient to render timely the matters addressed in Claim 1. CONCLUSION The Agency’s final decision dismissing the formal complaint for the reasons discussed above is AFFIRMED. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0620) 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. 5 2020004631 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. 29 C.F.R. § 1614.405; EEO Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Ch. 9 § VII.B (Aug. 5, 2015). Complainant should submit her request for reconsideration, and any statement or brief in support of her request, via the EEOC Public Portal, which can be found at https://publicportal.eeoc.gov/Portal/Login.aspx. Alternatively, complainant can submit her request and arguments to the Director, OFO, EEOC, 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. 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). 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 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. 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. 6 2020004631 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 November 19, 2020 Date