[Redacted], Emerita G., 1 Complainant,v.Carlos Del Toro, Secretary, Department of the Navy, Agency.

Equal Employment Opportunity Commission

Dec 13, 2022

Appeal No. 2022005101 (E.E.O.C. Dec. 13, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Emerita G.,1 Complainant, v. Carlos Del Toro, Secretary, Department of the Navy, Agency. Appeal No. 2022005101 Hearing No. 430-2022-00067X Agency No. 21-62383-00528 DECISION On September 22, 2022, Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency’s final order dated September 20, 2022, 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. For the following reasons, we find that the Agency properly implemented the EEOC Administrative Judge (AJ)’s decision to dismiss the complaint pursuant to 29 C.F.R. § 1614.107(a)(2), for untimely EEO Counselor contact. Consequently, we AFFIRM the Agency’s final order. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Utilityman, WG- 9985-10, at the Agency’s Civil Service Mariners (CIVMARS) West facility in Norfolk, Virginia. In late September 2020, her coworker, who worked as a Marine Placement Assistant, began making sexual charged comments towards her and repeatedly asked her to send nude photographs. See Report of Investigation (ROI) at 000033-34, 36, 41, 43, 115, and 117. As Complainant was afraid of reprisal, she reached out to the EEOC directly to report the harassment. Id. at 000107. 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. 2022005101 2 The EEOC subsequently referred Complainant to the Agency’s EEO Office, and Complainant initiated EEO counseling on January 29, 2021. Id. at 000108. Following Complainant’s complaint of sexual harassment, the Agency’s EEO Office informed Complainant’s third-level supervisor, who then initiated a management inquiry into the allegations. Id. at 000091. The management inquiry concluded on March 8, 2021, and substantiated Complainant’s allegations. Id. at 000183. To remedy, the harassment, management ordered the Marine Placement Assistant to not contact Complainant anymore. Id. at 000093 On May 17, 2021, Complainant filed a formal complaint alleging that the Agency subjected her to discrimination based on sex (female) when between September 24, 2020, and September 25, 2020, the Marine Placement Assistant contacted Complainant by email and voicemail and requested nude pictures, among other comments.2 At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation (ROI) and notice of her right to request a hearing before an EEOC AJ. Complainant requested a hearing. In accordance with Complainant’s request, the Commission assigned an AJ to hear the matter. On February 23, 2022, the Agency filed a motion, seeking to dismiss the complaint based on Complainant’s failure to timely initiate EEO counseling in accordance with 29 C.F.R § 1614.105(a)(1). In so arguing, the Agency maintained that the undisputed record showed that the alleged incidents of discrimination occurred in late September 2020; however, Complainant waited until January 29, 2021, to initiate EEO counseling. As more than 45 days had elapsed between the date of the alleged discriminatory incidents and the date of Complainant’s initial EEO contact, the Agency argued that dismissal was warranted. Complainant, however, vehemently opposed the Agency’s motion on the grounds that the Agency had misapplied the 45-day timeframe to initiate EEO counseling. Through her attorney, Complainant argued that she could not legally initiate EEO counseling within the 45-day timeframe because the Marine Placement Assistant was not her supervisor and 29 C.F.R. § 1604.11(d) establishes that “in a case of co-worker harassment, liability does not attach to the Agency unless and until the Agency failed to take prompt, effective remedial action to correct that harassment upon learning of the harassment.” Complainant emphasized that “had [she] jumped straight into filing an EEO complaint within 45 days of being the victim of sexual harassment, her EEO complaint would have been at risk of being dismissed as prematurely filed due to the Agency not yet having an opportunity to take prompt, effective remedial action.” Furthermore, Complainant maintained that she was afraid to report the harassment and stressed that “[t]he Agency has presented no evidence of prejudice or harm in its ability to investigate and take action in response to Complainant reporting the harassment in January 2021 instead of November 9, 2020 (the 45th day from September 25, 2020).” As such, Complainant maintained that dismissal was inappropriate. 2 At the parties’ request, the AJ reframed the complaint in this manner. See Jointly Reframed Issue, dated February 11, 2022. 2022005101 3 In response to Complainant’s opposition, the Agency filed a reply, arguing that Complainant’s reliance on 29 C.F.R. § 1604.11(d) to excuse her untimely EEO counseling was misplaced because that regulation “merely sets forth what an aggrieved individual must show in order to establish a claim of discriminatory harassment” and “does not provide the procedural basis or mechanism that an aggrieved individual must follow in order to assert such a claim.” The Agency explained that “[t]he procedure to do so, including the applicable time deadlines is set forth in 29 C.F.R. § 1614.101-1614-110.” As “[n]othing in 29 C.F.R Part 1614 allows a Complainant to shift the 45- day period to when the Complainant learns of the corrective actions an Agency has taken,” the Agency again reiterated that dismissal was the appropriate course of action. Over Complainant’s opposition, the assigned AJ granted the Agency’s motion and dismissed the matter for untimely EEO contact, as the undisputed record showed “the initial incident occurred on or about September 24, 2020, but [Complainant] did not report the incident to any official until January 29, 2021.” In reaching this conclusion, the AJ carefully considered Complainant’s contention that her untimely EEO contact was due to her fear of reprisal; however, the AJ ultimately rejected that contention, as the Commission has long held that a generalized fear of reprisal is insufficient to waive the limitations period. The Agency subsequently issued a final order implementing the AJ’s decision. This appeal followed. CONTENTIONS ON APPEAL On appeal, Complainant argues that the AJ erred in finding her complaint to be untimely raised as she did in fact “timely initiate her EEO contact within 45 calendar days of being informed of the Agency’s decided-upon remedial action.” She reiterates that since “this is a case of sexual harassment by a coworker, it would have been premature for Complainant to initiate an EEO complaint against the Agency without first putting the Agency on notice and allowing the Agency the opportunity to take prompt effective remedial action.” Finally, Complainant emphasizes that “even if Complainant had never reported the sexual harassment to the Agency, if the Agency learned of the harassment by other means and failed to take prompt and effective corrective action, the Complainant still would have an actionable EEO complaint.” The Agency, however, opposes the appeal. In opposing the appeal, the Agency vehemently disputes Complainant’s contention that the 45-day deadline is triggered of being informed the Agency’s chosen remedial action and maintains that the Commission applies a “reasonable suspicion” standard “when determining the triggering date for the 45-day clock.” As Complainant failed to timely initiate EEO contact or offer a valid excuse, the Agency requests that we affirm its final order. 2022005101 4 ANALYSIS AND FINDINGS EEOC Regulation 29 C.F.R. §1614.107(a)(2) states that the Agency shall dismiss a complaint or a portion of a complaint that fails to comply with the applicable time limits contained in §1614.105, §1614.106 and §1614.204(c), unless the Agency extends the time limits in accordance with §1614.604(c). EEOC Regulation 29 C.F.R. § 1614.105(a)(1) provides that an aggrieved person must initiate contact with an EEO Counselor within 45 days of the date of the matter alleged to be discriminatory or, in the case of a personnel action, within 45 days of the effective date of the action. EEOC regulation 29 C.F.R. § 1614.105(a)(2) allows the Agency or the Commission to extend the time limit if Complainant can establish that Complainant was not aware of the time limit, that Complainant did not know and reasonably should not have known that the discriminatory matter or personnel action occurred, that despite due diligence complainant was prevented by circumstances beyond her control from contacting the EEO Counselor within the time limit, or for other reasons considered sufficient by the Agency or Commission. Upon review, we find that the AJ properly dismissed the complaint for untimely EEO contact, as our review of the record clearly shows that Complainant did not initiate EEO contact on her September 2020 allegations of harassment until January 29, 2021. While we are mindful of Complainant’s contentions on appeal, we ultimately find no merit to her assertion that the 45-day deadline starts only when the Agency renders a decision on whether to take remedial action and to what extent. To the contrary, we note that our regulation at 29 C.F.R. § 1614.105(a)(1) clearly requires an aggrieved individual to initiate EEO contact within 45 days of the discriminatory act unless one of the exceptions noted in 29 C.F.R. § 1614.105(a)(2) applies. While we are sympathetic to Complainant’s fears of reprisal, we note that the Commission has long found generalized fears of reprisal to be insufficient to extend the 45-day deadline. See Breannie H. v. Dep’t of Homeland Sec., EEOC Appeal No. 2020004873 (Dec. 21, 2021). We also reject Complainant’s attempt to extend the time limit for initiating EEO contact until 45 days after the completion of Agency’s internal process for addressing harassment, as the Commission has held that an agency’s internal process is separate and distinct from the EEO process. See Rosamaria F. v. Dep’t of the Navy, EEOC Appeal No. 0120181068 (Feb. 14, 2020). As Complainant has not offered any persuasive explanation as to why the 45-day deadline should be extended, we ultimately find the matter to be untimely raised. 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 final order. 2022005101 5 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. 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). 2022005101 6 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 December 13, 2022 Date