Davina W.,1 Complainant,v.Sonny Perdue, Secretary, Department of Agriculture, Agency.

Equal Employment Opportunity Commission

Sep 11, 2019

2019003053 (E.E.O.C. Sep. 11, 2019)

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

Davina W.,1
Complainant,

v.

Sonny Perdue,
Secretary,
Department of Agriculture,
Agency.

Appeal No. 2019003053

Agency No. OCFO-2019-00425

DECISION

Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC
or Commission) from the Agency's decision dated April 5, 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., and the Age Discrimination in Employment
Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as an IT Specialist
Customer Support, GS-2210-99 in the Agency’s Information Technology Service Division in
New Orleans, Louisiana. On March 21, 2019, Complainant filed a formal complaint alleging
that the Agency subjected her to discrimination on the bases of race (African-American), color
(Brown), and age (59) when:

1. On or about November 6, 2018, management issued her a “Fully Successful” on
her Fiscal Year 2018 Performance Evaluation, and denied her promotion; and

2. On unspecified dates, management made discriminatory comments about her to
co-workers.

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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In its final decision, the Agency dismissed Complainant’s complaint in accordance with EEOC
Regulation 29 C.F.R. § 1614.107(a)(2). The Agency determined that the instant complaint
contained claims that had not been brought to the attention of an EEO Counselor. This appeal
followed.

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 raises a matter that has not been brought to the attention of an
EEO Counselor and is not like or related to a matter on which the complainant has received
counseling. A later claim or complaint is “like or related” to the original complaint if the later
claim or complaint adds to or clarifies the original complaint and could have reasonably been
expected to grow out of the original complaint during the investigation. See Scher v. U.S. Postal
Serv., EEOC Request No. 05940702 (May 30, 1995); Calhoun v. U.S. Postal Serv., EEOC
Request No. 05891068 (March 8, 1990).

The record reflects that on December 17, 2018, Complainant’s EEO representative sent an email
to the Acting Chief of the Agency’s Civil Rights and Conflict Management Office stating that
Complainant “would like to make an EEO complaint against [named individual] concerning her
2018 performance rating.” The record further indicates the EEO Counselor assigned to the case
contacted Complainant to schedule a date for her initial interview. Complainant accepted an
appointment request for February 5, 2019. However, she failed to attend the scheduled
appointment. Another meeting was scheduled for February 19, 2019 which Complainant
accepted but again failed to attend. On February 22, 2019, the Agency emailed Complainant and
her representative a notice for failure to cooperate during EEO counseling and instructed
Complainant to contact the EEO office within 5 calendar days to schedule an initial interview.
On February 26, 2019 Complainant’s representative emailed the Agency’s EEO office indicating
that Complainant had been ill but that she wished to reschedule the initial interview regarding
her concerns. The record indicates that an email invitation was sent to Complainant and her
representative on March 1, 2019 requesting an appointment on March 6, 2019. Neither
Complainant or her representative responded to the appointment request. Finally, on March 6,
2019, the Agency’s EEO Counselor emailed both Complainant and her representative a Notice of
Right to File a formal complaint.

Upon review, we find that Complainant improperly filed a formal complaint regarding claims
which were not brought to the attention of an EEO Counselor and presented for informal
counseling in accordance with EEO regulations. We acknowledge that Complainant clearly
initiated EEO Counselor contact. However, Complainant did not thereafter undergo EEO
counseling. Complainant failed to participate in EEO Counselor regarding her claims in order to
attempt informal resolution. The initial contact by Complainant’s representative did not contain
specific information in order to continue the informal complaint process.

In that regard we find that the Agency’s dismissal in accordance with EEOC Regulation 29
C.F.R. § 1614.107(a)(2) was proper.
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CONCLUSION

Based on a thorough review of the record and the contentions on appeal, we AFFIRM the
Agency’s final decision.

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
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 (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.
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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

September 11, 2019
Date