[Redacted], Billie M., 1 Complainant,v.Deb A. Haaland, Secretary, Department of the Interior (Bureau of Reclamation), Agency.

Equal Employment Opportunity Commission

Sep 28, 2022

Appeal No. 2022003493 (E.E.O.C. Sep. 28, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Billie M.,1 Complainant, v. Deb A. Haaland, Secretary, Department of the Interior (Bureau of Reclamation), Agency. Appeal No. 2022003493 Agency No. DOI-BOR-22-0153 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from a final Agency decision (FAD) dated May 19, 2022, dismissing his complaint alleging 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. The Commission accepts the appeal in accordance with 29 C.F.R. § 1614.405. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Plant Mechanic, WB-5352, at the Agency’s Bureau of Reclamation, Hungry Horse Field Office in Hungry Horse, Montana. On February 22, 2022, Complainant filed a formal complaint alleging that the Agency subjected him to unlawful retaliation for engaging in prior protected EEO activity when: 1. On September 9, 2019, a Supervisory Facility Operations Specialist (SFOS) asked Complainant not to file an EEO complaint regarding Foreman III’s attempt to get a restraining order against Complainant because it would prolong the process; and 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. 2022003493 2 2. On January 7, 2022, Complainant became aware that Foreman III had made a second attempt, on September 23, 2019, to obtain a restraining order against Complainant. The Agency dismissed claim 1 for untimely EEO Counselor contact and claim 2 for failure to state a claim. Specifically, with regard to claim 1, the Agency found that SFOS asked Complainant not to file an EEO complaint on September 9, 2019, but that Complainant did not contact an EEO Counselor until January 24, 2022, which is beyond the regulatory limit. As for claim 2, the Agency reasoned that the Commission previously held that it lacks jurisdiction over claims where an employee alleges that their supervisor filed a restraining order against them. The instant appeal from Complainant followed. ANALYSIS AND FINDINGS Untimely EEO Counseling: Claim 1 EEOC Regulation 29 C.F.R. § 1614.105(a)(1) requires that complaints of discrimination 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 discloses that SFOS asked Complainant not to file an EEO complaint on September 9, 2019, but Complainant did not initiate contact with an EEO Counselor until January 24, 2020, well beyond the forty-five (45) day limitation period. EEOC regulations provide that the agency or the Commission shall extend the time limits when the individual shows that he was not notified of the time limits and was not otherwise aware of them, that he did not know and reasonably should not have known that the discriminatory matter or personnel action occurred, that despite due diligence he was prevented by circumstances beyond his control from contacting the Counselor within the time limits, or for other reasons considered sufficient by the agency or the Commission. Complainant argues that he did not have “actual knowledge” of the restraining order until January 24, 2022. However, as the Agency points out on appeal, the issue is not when Complainant learned about the restraining order but when he was told not to file an EEO complaint. The record shows that Complainant clarified to the EEO Counselor that SFOS told him not to file an EEO complaint on September 9, 2019. As such, his January 2020 EEO Counselor contact is untimely. On appeal, Complainant has presented no persuasive arguments or evidence warranting an extension of the time limit for initiating EEO Counselor contact. 2022003493 3 Failure to State a Claim: Claim 2 An Agency shall accept a complaint from any employee or applicant for employment who believes he or she has been discriminated against by that Agency because of race, color, religion, sex, national origin, age, disabling condition, genetic condition, or reprisal. 29 C.F.R. §§ 1614.103, 106(a). The Commission interprets the statutory retaliation clauses “to prohibit any adverse treatment that is based on a retaliatory motive and is reasonably likely to deter the charging party or others from engaging in protected activity.” EEOC Compliance Manual, Section 8 (Retaliation) at 8-13, 8-14 (May 20, 1998). The regulation set forth at 29 C.F.R. § 1614.107(a)(1) provides, in part, that an Agency shall dismiss a complaint that fails to state a claim. Complainant argues that the Agency previously accepted a complaint under Agency No. DOI- BOR 20-0121 that included a claim regarding an earlier restraining order that was allegedly filed against him, and that that complaint is currently pending before an EEOC Administrative Judge under EEO Case No. 551-2020-00119X. Regardless of whether or not the Agency accepted a similar claim, we find that Complainant has not shown in this case how the alleged action “is reasonably likely to deter [Complainant] or others from engaging in protected activity.” We note in this regard that Complainant told the EEO Counselor that the recent restraining order was denied but that Complainant nevertheless “believes it is a part of the record because it never leaves [Foreman III]'s file. [Complainant] explains that they would have to look [Foreman III] up and see [Complainant]. He adds that he does not know whether they would see the restraining order if someone looks him up.” Given that the restraining order was denied, and that Complainant does not know whether anyone, much less a work colleague or management official, would even be able to learn of the denied restraining order, we find Complainant’s concerns to be purely speculative and too attenuated to support a finding that the action is reasonably likely to deter Complainant or others from engaging in protected activity. CONCLUSION Therefore, we find that the Agency’s decision was proper and 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. 2022003493 4 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. 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. 2022003493 5 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 28, 2022 Date