Melanie C.,1 Complainant,v.Sonny Perdue, Secretary, Department of Agriculture (Food Safety and Inspection Service), Agency.

Equal Employment Opportunity Commission

Sep 18, 2019

2019003504 (E.E.O.C. Sep. 18, 2019)

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

Melanie C.,1
Complainant,

v.

Sonny Perdue,
Secretary,
Department of Agriculture
(Food Safety and Inspection Service),
Agency.

Appeal No. 2019003504

Agency No. FSIS-2019-00259

DECISION

Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC
or Commission) from the Agency’s decision dated March 29, 2019, dismissing her complaint of
unlawful employment discrimination in violation of the Age Discrimination in Employment Act
of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. Upon review, the Commission finds that
Complainant’s complaint was improperly dismissed pursuant to 29 C.F.R. § 1614.107(a)(2).

ISSUE PRESENTED

The issue presented is whether the Agency properly dismissed Complainant’s complaint,
pursuant to 29 C.F.R. § 1614.107(a)(2), for failure to comply with the applicable time limits in
29 C.F.R. § 1614.105(a)(1).

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Consumer Safety
Inspector, GS-8, at the Agency’s Springdale District facility in Shelbyville, Tennessee.2 On

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 The unlawful discrimination is alleged to have occurred at the Jackson District facility.
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March 19, 2019, Complainant filed a formal complaint alleging that the Agency subjected her to
discrimination on the bases of age (61) and reprisal when Complainant was not selected for any
of the eight (8) Consumer Safety Inspector (CSI) GS-8 positions located at the Tyson Foods
Incorporated establishment in the Jackson District.

In its final Agency decision (FAD), the Agency states that the most recent claim arose on
October 2, 2018, and that Complainant initiated contact with an EEO Counselor on November
30, 2018, which the Agency found to be beyond the 45-day limit to contact an EEO Counselor.
On March 29, 2019, the Agency issued a final decision dismissing the complaint pursuant to 29
C.F.R. § 1614.107(a)(2) for failure to comply with the applicable time limits in 29 C.F.R. §
1614.105(a)(1). The instant appeal follows.

CONTENTIONS ON APPEAL

On appeal, Complainant states that the FAD misrepresents the timeline of events. She states that
the FAD lists October 2, 2018 as the most recent date a claim arose. However, Complainant
states that the date the last claims arose was December 4, 2018. Complainant states that she made
her EEO Counselor aware of the discrepancy in dates listed on the EEO Counselor’s report.
Complainant states that she advised her EEO Counselor of the issue with the dates and the
Counselor advised that she would be in touch once she received guidance on how to handle that
matter. Complainant states and demonstrates that the EEO Counselor’s report has multiple
incorrect statements and facts. These statements that are either mistakes, or contradict the EEO
Counselor’s report or the FAD, include the following: 1)That Complainant applied for the
positions on October 22, 2018, and that the vacancy closed on November 1, 2018; 2) That
Complainant went to the Eads, Tennessee plant to speak to an individual when the individual
was at the Tyson Foods Plant in Union City, Tennessee; 3) Complainant’s Union Representative,
who is also the Union president, is listed with the incorrect last name; and 4) Complainant is mis-
gendered, and it is put in bold. Complainant stated that the correct date that she was notified that
she did not receive any of the 8 positions was actually December 4, 2018. She noted that she
applied for the positions on October 22, 2018 and that the vacancies closed after that date, on
November 1, 2018, so her EEO Counselor contact was timely.

On appeal, the Agency admits that after an examination of the record and the appeal, its
dismissal was incorrect and it concludes that Complainant’s contact with the EEO counselor was
timely and this matter should be remanded.

ANALYSIS AND FINDINGS

The regulation sent 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. § 1614.105(a)(1), which, in turn, requires a Complainant to make contact with an EEO
counselor within the filing of a formal complaint within 45 days of the date of the matter alleged
to be discriminatory or, in the case of personnel action, within 45 days of the effective date of the
action.
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Upon a review of the record, Complainant’s appeal and the Agency’s brief, we find that
Complainant was not made aware of at least 2 of her non-selections until December 4, 2018.
Therefore, her contact with EEO Counselor on November 30, 2018, was timely and the dismissal
of Complainant’s claim was inappropriate.

CONCLUSION

Accordingly, the Agency’s final decision dismissing Complainant’s complaint is REVERSED.
The complaint is hereby REMANDED to the Agency for further processing in accordance 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.
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
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.
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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 (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.

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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.

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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 18, 2019
Date