[Redacted], Eileen S., 1 Complainant,v.Merrick B. Garland, Attorney General, Department of Justice (Federal Bureau of Investigation), Agency.

Equal Employment Opportunity Commission

Sep 15, 2022

Appeal No. 2022003533 (E.E.O.C. Sep. 15, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Eileen S.,1 Complainant, v. Merrick B. Garland, Attorney General, Department of Justice (Federal Bureau of Investigation), Agency. Appeal No. 2022003533 Agency No. FBI-2022-00042 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's final decision dated May 11, 2022, dismissing her 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., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. BACKGROUND During the period at issue, Complainant worked as an Information Technology Specialist at the FBI’s El Paso, Texas Field Office. On November 22, 2021, Complainant initiated EEO contact alleging that the Agency subjected her to discrimination based on sex (female), age (52), and in reprisal for prior EEO activity. According to the EEO Counselor’s Report, Complainant alleged discrimination and unlawful retaliation when on November 10, 2021, she was notified that she was not selected for the position of Supervisory Foreign Language Program Coordinator (SFLPC) in the El Paso Field Office, and on or about November 16, 2021, she was made aware an executive management official did not want to select her for the SFLPC position. 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. 2022003533 2 When the matter was not resolved during counseling, on January 19, 2022, the Agency issued a Notice of Right to File a formal EEO complaint. On February 1, 2022, Complainant filed a formal EEO complaint alleging that the Agency subjected her to discrimination on the bases of sex (female), age (52), and in reprisal for prior EEO activity when: 1. On an unspecified date, she was placed on a Performance Improvement Plan (PIP). 2. On an unspecified date, a named Supervisory Information Technology Specialist asserted that she was “too old to behave in X, Y or Z manner.” 3. Since 2018, she has been harassed by the same Supervisory Information Technology Specialist, especially after she was allowed to return to his squad, including, but not limited to: moving her work space; writing her up for little things; yelling at her; telling lies about her to, or sharing personal information with, her colleagues; not being flexible with her schedule; discounting her ideas; accusing her of insubordination and subjecting her to an internal investigation; and placing her on the PIP.2 On May 11, 2022, the Agency dismissed Complainant’s complaint pursuant to 29 C.F.R. § 1614.107(a)(2) for raising a matter which has not been brought to the attention of an EEO Counselor and is not like or related to a matter which has been brought to the attention of a Counselor. The Agency noted that the EEO Counselor reported Complainant only raised discrimination based on her non-selection for the SFLPC position, but that the allegations in her formal complaint did not mention the non-selection and were new and not like or related to the counseled matters. The instant 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 a Counselor and it not like or related to a matter that has been brought to the attention of an Counselor. A later claim or complaint is “like or related” to the original claim(s) if the later claim or complaint adds to or clarifies the original complaint or 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 (Mar. 8, 1990). 2 The details of her harassment claim are set forth in an attachment to her complaint. The attachment appears to be a statement she provided to the Agency’s Inspection Division during the investigation of the charge that she had engaged in unprofessional conduct. 2022003533 3 Upon review of the record, we find that in her formal complaint, Complainant failed to raise a matter “like or related” to that which she raised in counseling. According to the EEO Counselor’s Report, Complainant’s counseling dealt exclusively with her non-selection for the position of Supervisory Foreign Language Program Coordinator in November 2021. Her formal complaint, however, did not raise the issue of her non-selection, but rather concerned an ongoing claim of harassment and being placed on a PIP. Neither of these matters can be said to reasonably be like or related to the non-selection claim raised during EEO counseling. On appeal, Complainant, through her legal counsel, asserts without further explanation that the ongoing harassment she alleged in her complaint included her non-selection to the SFLPC position. However, this connection was not made during EEO counseling - where harassment was not discussed, or in her formal complaint - where the non-selection was not raised. Accordingly, we affirm the Agency’s dismissal of Complainant’s complaint pursuant to 29 C.F.R. § 1614.107(a)(2) for raising a matter that has not been brought to the attention of an EEO Counselor and is not like or related to a matter which has been brought to the attention of the counselor. CONCLUSION Accordingly, the Agency’s final decision dismissing Complainant’s complaint is AFFIRMED for the reasons set forth herein. 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 2022003533 4 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. 2022003533 5 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 15, 2022 Date