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

Equal Employment Opportunity Commission

Dec 12, 2022

Appeal No. 2022004722 (E.E.O.C. Dec. 12, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Elmer C.,1 Complainant, v. Frank Kendall, Secretary, Department of the Air Force, Agency. Appeal No. 2022004722 Agency No. 9HIC2200624 DECISION Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency’s decision dated August 17, 2022, dismissing his complaint of unlawful employment discrimination in violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Recreation Specialist, GS-0188-07, at the Agency’s 99th Force Support Squadron facility in Nellis Air Force Base, Nevada. On August 8, 2022, Complainant filed a formal complaint alleging that, on May 20, 2020, the Agency subjected him to discrimination on the bases of disability (mental) and reprisal for prior protected EEO activity when: 1. the Agency failed to accommodate Complainant, including but not limited to refusal to allow quarantine and denial of access to medical care; 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. 2022004722 2 2. in reprisal for requesting accommodations and for protesting discrimination, the Agency wrongfully terminated Complainant; and 3. the Agency harassed Complainant, including belittlement and insults, for having a disability. The Agency framed the claim as: Complainant was terminated from his position as Recreation Specialist (Youth Activities), GS-0l88-07, by the Child Development Center III Flight Chief, on 30 May 2020. In its final decision, the Agency dismissed the complaint, reasoning that Complainant had elected to file a complaint with the Merit Systems Protection Board (MSPB), pursuant to 29 C.F.R. § 1614.107(a)(4). Alternatively, the Agency dismissed the complaint for untimely EEO Counselor contact, pursuant to 29 C.F.R. § 1614.107(a)(2). The instant appeal followed. 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 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. 29 C.F.R. § 1614.105(a)(2). Here, assuming the events occurred as alleged, they took place in May 2020 or earlier. Complainant was removed from federal service, effective May 30, 2020. According to the EEO Counselor’s Report, Complainant contacted an EEO Counselor on June 14, 2022, over two years after his removal. Thus, Complainant’s EEO Counselor contact is untimely. On appeal, Complainant argues that the Agency was obliged to provide notice of his EEO rights after the MSPB dismissed Complainant’s complaint for lack of jurisdiction in a decision dated January 21, 2021 (MSPB Docket No. SF-1221-21-0023-W-1). 2022004722 3 Complainant also provided a signed doctor’s note attesting that Complainant was unable to effectively represent himself in court actions during 2020 and 2021 due to serious mental health issues. Unfortunately, the time for Complainant to initiate a complaint with the Commission is governed by the doctrine of laches, “an equitable remedy under which an individual’s failure to diligently pursue their actions can bar their claims.” Bula P. v. Dep’t of the Navy, EEOC Appeal No. 2021003971 (Oct. 4, 2022) (citing Avery S. v. Dep’t of the Treasury, EEOC Request No. 2020000221 (Jan. 22, 2020) (quoting O’Dell v. Dep’t of Health & Hum. Servs., EEOC Request No. 05901130 (Dec. 27, 1990). Complainant waited over two years to contact an EEO Counselor on the instant matters. To the extent that Complainant’s EEO contact may be construed as an attempt to appeal to the Office of Federal Operations from the MSPB decision, that decision made clear that Complainant had 30 calendar days from the date the decision became final to appeal discrimination claims to the Office of Federal Operations. The MSPB decision became final on February 25, 2021. Complainant did not file an appeal as instructed by that date. Thus, the instant action is still untimely.2 CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency’s dismissal. 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). 2 In light of our affirmance of the Agency’s dismissal on these grounds, we need not address the Agency’s alternative grounds for dismissal. 2022004722 4 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. 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. 2022004722 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 December 12, 2022 Date