[Redacted], Gilbert B., 1 Complainant,v.Lloyd J. Austin III, Secretary, Department of Defense (Defense Contract Audit Agency), Agency.

Equal Employment Opportunity Commission

Sep 14, 2022

Appeal No. 2022002769 (E.E.O.C. Sep. 14, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Gilbert B.,1 Complainant, v. Lloyd J. Austin III, Secretary, Department of Defense (Defense Contract Audit Agency), Agency. Appeal No. 2022002769 Agency No. DCAA Case CE22-001 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's decision dated March 28, 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., and 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 an Auditor at the Agency’s facility in Nashville, Tennessee. On March 9, 2022, Complainant filed a formal complaint alleging that the Agency subjected him to discrimination on the bases of race (African-American), color (Black), disability, and reprisal for prior protected EEO activity when: 1. Between March 2021 and October 9, 2021, the Branch Manager required him to extend his end of tour by thirty minutes daily as a result of his hour-long lunch, yet other employees were allowed to take an hour for lunch by combining their two fifteen-minute breaks with their thirty-minute lunch period. 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. 2022002769 2 2. On September 8, 2021, the Branch Manager issued a Proposal to Remove him from his position and Federal Service for Unacceptable Performance. 3. Between March 22, 2021 and June 20, 2021, the Supervisory Auditor nit-picked his work and piecemealed the review of his work, therefore denying him an adequate opportunity to successfully complete the Performance Improvement Plan. 4. On October 6, 2021, the Regional Audit Manager issued a Removal Decision removing him from his position and Federal service effective October 9, 2021. The Agency issued a decision dismissing the complaint for untimely EEO Counselor contact. According to the Agency, Complainant’s December 6, 2021 initial contact was thirteen days after the forty-five-day time limit. While the Counselor’s Report reflected that Complainant indicated he was unaware of how to file a complaint, the Agency noted that Complainant had completed “EEO 101 (NO FEAR Act) training on September 20, 2019 [and in 2017 and 2014]. Further, the course description included “Understand how to file a complaint alleging discrimination, retaliation . . . .” Regarding the basis of reprisal, the Agency also dismissed the complaint for failure to state a claim, finding that Complainant did not establish he had prior EEO activity. Complainant filed the instant appeal. ANALYSIS AND FINDINGS EEOC Regulation 29 C.F.R. §1614.105(a)(1) provides that an aggrieved person must initiate contact with an EEO 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. EEOC Regulation 29 C.F.R. § 1614.107(a)(2) provides for the dismissal of complaints where the complainant did not comply with the time limits set forth at 29 C.F.R. §1614.105. The record discloses that the most recent, alleged discriminatory event occurred on October 9, 2021, but Complainant did not initiate contact with an EEO Counselor until December 6, 2021, which is beyond the forty-five (45) day limitation period. In an April 1, 2022 email to a member of the Agency’s EEO staff, following receipt of the Agency’s decision, Complainant contended that the statement that he was unaware of how to file a complaint is “. . . factually incorrect as I was working with the Union President every step of the way. Why I missed the deadline would be a question for [the Union President].” Moreover, on appeal, Complainant contends that “I was working with [Union President] for my Grievance process and Union EEOC Rep was suppose[d] to be working on the formal complaint.” We note, however that the use of the negotiated grievance procedure does not toll the time limit for contacting an EEO Counselor. Schermerhorn v. U.S. Postal Serv., EEOC Request No. 05940729 (Feb. 10, 1995). 2022002769 3 We find that Complainant has not presented sufficient justification for extending or tolling the time limit for initiating EEO Counselor contact. CONCLUSION Accordingly, the Agency's final decision dismissing Complainant's complaint 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. 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. 2022002769 4 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. 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 14, 2022 Date