[Redacted], Alena C., 1 Complainant,v.Alejandro N. Mayorkas, Secretary, Department of Homeland Security (Customs and Border Protection), Agency.

Equal Employment Opportunity Commission

Feb 22, 2021

Appeal No. 2020004758 (E.E.O.C. Feb. 22, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Alena C.,1 Complainant, v. Alejandro N. Mayorkas, Secretary, Department of Homeland Security (Customs and Border Protection), Agency. Appeal No. 2020004758 Hearing No. 510-2020-00071X Agency No. HS-CBP-00491-2019 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's decision dated July 8, 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 At the time of events giving rise to this complaint, Complainant worked as an Import Specialist, GS-1889-12, at the Agency’s Customs and Border Patrol (CBP) facility in Miami, Florida. On February 21, 2019, Complainant filed a formal complaint alleging that the Agency subjected her to discrimination on the basis of race (African-American) when, since September 26, 2018, her email to the CBP’s Hiring Center requesting an age waiver for reassignment to the position of CBP Officer (CBPO) has been ignored. 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. 2020004758 2 The Agency accepted the complaint and conducted an investigation. At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of her right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). On May 11, 2020, the Agency filed a Motion to Dismiss. Over Complainant’s objection, on June 3, 2013, the AJ granted the Agency’s motion and issued an order dismissing the complaint, pursuant to 29 C.F.R. § 1614.107(a)(2), for untimely EEO Counselor contact. The Agency issued a final decision affirming the AJ’s dismissal of the complaint. The instant appeal followed. On appeal, Complainant asserts that she did not meet the time deadline because the CBP EEO office instructed her to take leave or vacate her initial filing. In response, the Agency reiterates its contention that Complainant’s initial EEO Counselor contact was untimely and argues that Complainant has failed to prove her claim of racial discrimination. ANALYSIS AND FINDINGS EEOC Regulation 29 C.F.R. § 1614.105(a)(1) requires that complaints of discrimination should be brought to the attention of the Equal Employment Opportunity Counselor within forty-five (45) days of the date of the matter alleged to be discriminatory or, in the case of a personnel action, within forty-five (45) days of the effective date of the action. Here, the record shows that Complainant initially contacted an EEO Counselor on November 13, 2018. Complainant maintains that the alleged discriminatory event occurred on September 26, 2018, when she sent an email to the Agency inquiring about her ability to be reassigned from an Import Specialist to a CBPO position. However, we find the record establishes that Complainant was notified that she could not be reassigned to the CBPO position because she did not meet the age requirement at least a year prior to September 26, 2018. Emails show that, on May 12, 2017, Complainant contacted the CBP Hiring Center regarding returning to a CBPO position and was informed that she should contact her Field Office; she was also advised that there was an age requirement. An email dated September 22, 2017, from an HR Specialist in the Agency’s Office of Field operations sent to Complainant indicates that Complainant does not meet the age requirement for reassignment to a primary CBPO position. On October 3, 3017, Complainant replied to the email, asserting that her co-workers had been granted waivers and inquiring as to why she was being treated differently due to age. Emails dated in October 2017, indicate that HR Specialists discussed whether there were any alternatives to the age requirement, including a waiver and concluded that there were not. On August 26, 2018, Complainant submitted another electronic inquiry to CBP Hiring indicating that she would like to be reassigned to a CBPO position and, on September 4, 2018, she received a reply indicating that she did not meet the age requirements. An email from Complainant to CBP Hiring, dated September 26, 2018, indicates that she has been trying to get reassigned to this position for several years and has always been told, “no.” 2020004758 3 The EEO Counselor’s report indicates that, Complainant submitted a prior EEO complaint alleging discrimination when, on or about August 22, 2018, she was informed that she could not be reassigned to the CBPO position because of her age. Complainant indicated that she withdrew this complaint on September 11, 2018, because she was told that she and her comparator were both over age 40 and, therefore, there was no age discrimination. We find that the record establishes that Complainant was notified that she was ineligible to be reassigned to the CBPO position because she did not meet the age requirements for the position on September 25, 2017, which is more than 45 days prior to her initial EEO Counselor contact. While Complainant has continued to inquire about reassignment to the CBPO position, the Agency has consistently informed her that she was beyond the age limitation for the position. Complainant has failed to provide sufficient justification for extending or tolling the time limit. Accordingly, the Agency's final decision dismissing Complainant's complaint is AFFIRMED. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0920) 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. 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, a 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. 2020004758 4 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. 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 February 22, 2021 Date