[Redacted], Cleo Q., 1 Complainant,v.Frank Kendall, Secretary, Department of the Air Force, Agency.

Equal Employment Opportunity Commission

Mar 7, 2023

Appeal No. 2023001177 (E.E.O.C. Mar. 7, 2023)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Cleo Q.,1 Complainant, v. Frank Kendall, Secretary, Department of the Air Force, Agency. Appeal No. 2023001177 Agency No. 8Z0J2200644 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's final decision dated November 8, 2022, dismissing a formal 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. BACKGROUND During the period at issue, Complainant worked as an IT Specialist as part of the Agency’s Palace Acquire (PAQ) Intern Program at the Agency’s Joint Base San Antonio-Lackland facility in Texas. On June 30, 2022, Complainant initiated EEO contact. Informal efforts to resolve his concerns were unsuccessful. On November 7, 2022, Complainant filed a formal complaint alleging that the Agency subjected him to discrimination based on religion (Judeo-Christian). In its November 8, 2022 final decision, the Agency determined that the formal complaint was comprised of the following claims: Was Complainant discriminated against based on religion [by named Agency officials] when: 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. 2023001177 2 a. On December 6, 2021, [a named Agency official, A1] sent Complainant home on AWOL for adhering to [his] religious principles and refusing to take a COVID-19 screen test. b. On December 17, 2021, [A1] texted Complainant “just to recap, since you are not willing to test; you have been AWOL since December 6, 2021.” c. On December 21, 2021, when [Complainant asked] [A1] for status on Religious Exemption, [A1 stated] it has been put on hold. d. On March 3, 2022 [another named Agency official, A2] denied Complainant’s request to telework for completion of duties, stating he could not remote work since Complainant was outside of JBSA area. e. On April 6, 2022, [A2] denied Complainant’s request to rotate to another base for PAQ OJT and directed Complainant to coordinate with PAQ supervisor in the unit. The Agency dismissed the formal complaint for untimely EEO Counselor contact. The Agency reasoned that Complainant’s EEO contact on June 30, 2022 occurred more than 45 days after the alleged discriminatory incidents set forth in (a)-(e). The instant appeal followed. On appeal, Complainant requests that we reverse the Agency’s final decision and provides various arguments as to why his EEO contact should be deemed timely. Complainant asserts that his supervisor notified him on February 15, 2022 that he was not authorized to use his government laptop and thus he had no access to human resource personnel. Complainant further asserts that he was ordered to return to work on March 28, 2022, and it was not until this time that he began asking co-workers for advice and that they referenced the EEO process. Complainant asserts that he met with an EEO Counselor on April 21, 2022, who informed him that he did not have a valid claim because the first date of the incident was December 6, 2021, which exceeded 45 days. Complainant states that the last day of the adverse action was his return to work on March 28, 2022, and thus his EEO contact on April 21, 2022 was timely. Finally, Complainant asserts that he received a termination letter on May 19, 2022, for an incident that took place on March 3, 2022 while he was on AWOL.2 Complainant stated that an Agency official “dismissed” the termination. 2 The record does not contain a copy of the termination letter. According to the EEO Counselor’s Report, an Agency official stated that Complainant resigned effective September 16, 2022, with no reason provided. EEO Counselor Report at 5. 2023001177 3 Complainant states that he initiated EEO contact within 45 days of receiving the termination letter. In response, the Agency states that Complainant failed to articulate why it was necessary for him to have his government laptop to initiate EEO contact. Specifically, the Agency stated “by his own admission, [Complainant] was able to request telework from PAQ management during the window his government laptop was unavailable to him…he proffers no reason he could not have requested information to contact [EEO] from his managers.” Regarding Complainant’s assertion that upon his return to work, he began researching his options and his co-workers referred him to EEO, the Agency, in its response brief, states “Complainant did not learn about EEO processes for the first time after returning to work in 2022. When he in-processed at JSBA, he underwent required training for new employees, which included EEO policies and timelines.” Regarding Complainant’s assertion that he initiated EEO contact on April 21, 2022, the Agency states that Complainant did not exhibit the intent to begin the EEO process on this date because he signed a document setting forth that he did not wish to proceed with pre-complaint processing. Finally, regarding Complainant’s assertion that he initiated EEO contact within 45 days of receiving a termination letter, the Agency states that Complainant did not raise the issue of the termination letter during the informal EEO stage or in his formal complaint. 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. The Commission has adopted a "reasonable suspicion" standard (as opposed to a "supportive facts" standard) to determine when the forty-five (45) day limitation period is triggered. See Howard v. Dep’t of the Navy, EEOC Request No. 05970852 (Feb. 11, 1999). Thus, the time limitation is not triggered until a complainant reasonably suspects discrimination, but before all the facts that support a charge of discrimination have become apparent. EEOC regulations also 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. 2023001177 4 The Agency properly dismissed Complainant’s complaint for untimely EEO Counselor contact. Complainant did not initiate EEO Counselor contact until June 30, 2022, outside of the applicable time limit for incidents (a)-(e). While Complainant asserts that he did not have his access to his government laptop from February 15, 2022, until his return to work on March 28, 2022, we concur with the Agency that Complainant does not articulate why he needed his government computer to contact the Agency’s EEO Office. The record reflects that he had contact with other Agency officials during his time on AWOL. We are also not persuaded by Complainant’s assertion that it was only upon his return to the office on March 28, 2022 that he started researching this situation and was informed by co- workers to contact EEO. The record contains a declaration under penalty of perjury from his supervisor. Therein, his supervisor asserted that Complainant was onboarded as a summer hire in the May 2019, and returned as a full-time employee in the summer of 2020. The supervisor asserted that Complainant, as a new hire, underwent Newcomers Equal Employment Opportunity Training which discusses the Agency’s policy against discrimination, including the 45-day requirement for EEO counselor contact. The supervisor further stated that EEO posters are displayed on the main bulletin board in the facility advising employees of the timelines. Based on the foregoing, we find that Complainant should have reasonably suspected discrimination at the time of the alleged incidents and was aware of the 45-day time limit and the process for initiating EEO contact. We are also not persuaded by Complainant’s assertion that he initiated EEO contact on April 21, 2022, and thus his EEO contact should be deemed timely. The Commission has held that, in order to establish EEO contact, an individual must contact an Agency official logically connected to the EEO process and exhibit an intent to begin the EEO process. Allen v. United States Postal Serv., EEOC Appeal No. 05950933 (July 8, 1996). We concur with the Agency that Complainant did not exhibit an intent to begin the EEO process on these matters during his April 21, 2022 meeting with an EEO Counselor. Complainant signed the following document on April 21, 2022: I certify that I was counseled on this date and do not wish to proceed with pre- complaint processing…It was also explained to me that if I do not wish to provide an act or personnel action believed to be discriminatory, the 45 day time frame for raising the matter to the attention of an EEO Counselor would not be waived and any allegations presented at a later date would be considered a new contact date…” Based on the foregoing, we find that Complainant’s did not exhibit an intent to begin the EEO process on these matters on April 21, 2022, and thus he did not initiate EEO contact until June 30, 2022. Finally, regarding Complainant’s assertion that he initiated EEO contact within 45 days of receiving a termination letter on May 19, 2022, we concur with the Agency that Complainant did not raise this issue in pre-complaint counseling or his formal complaint. 2023001177 5 The record reflects that Complainant did not raise the issue of the termination letter in his formal complaint. In addition, in an Intake Packet dated June 30, 2022, Complainant did not raise the issue of his termination letter (Complainant checked boxes for “duty hours”, “religious accommodation”, “telework”, “time and attendance”, and “training,” but did not check the box for “termination”),3 In addition, a review of the EEO Counselor’s Report reflects that Complainant did not raise the issue of the termination letter during EEO Counseling. EEO Counselor’s Report at 3, Section D. We will not accept new claims for the first time on appeal. If Complainant wishes to pursue this matter through the EEO process, he should contact an EEO Counselor. Based on the foregoing, we find that Complainant has not presented sufficient justification to extend the applicable time limit. Accordingly, we AFFIRM the Agency’s final decision dismissing Complainant’s complaint. 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 3 While Complainant’s June 30, 2022 EEO contact occurred after receiving the termination letter on May 19, 2022, Complainant did not allege this as a discriminatory incident during the pre- complaint process. 2023001177 6 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. 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. 2023001177 7 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 March 7, 2023 Date