U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Latricia P.,1 Complainant, v. Alejandro N. Mayorkas, Secretary, Department of Homeland Security (Citizenship and Immigration Services), Agency. Appeal No. 2022003824 Agency No. HS-CIS-00586-2022 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's final decision dated June 2, 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 a Field Office Director (FOD) at the Agency’s U.S. Citizenship and Immigration Services (USCIS) in New York, New York. On December 6, 2021, Complainant initiated EEO Counselor contact. Informal efforts to resolve her concerns were unsuccessful. On February 9, 2022, Complainant filed a formal EEO complaint alleging that the Agency subjected her to discrimination and hostile work environment based on national origin and in reprisal for prior protected activity when: 1. Since May 25, 2019, management has tried to turn her staff against her. 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. 2022003824 2 2. In or around September 2021, management spread rumors that she was a “leak” in the Northeast Region. 3. On October 7, 2021, Complainant received her FY 2021 Performance Plan and Appraisal (PPA) with a lower rating than expected and that rumors and uncorroborated information were used in her PPA. 4. On October 18, 2021, management directed one of Complainant’s colleagues to conduct research regarding an inquiry pertaining to Complainant’s office instead of asking her to research the inquiry pertaining to Complainant’s office instead of asking her to research the inquiry and provide a response. In its June 2, 2022 decision, the Agency dismissed the formal 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. Here, Complainant alleged that USCIS discriminated against her and subjected her to a hostile work environment from May 25 to October 18, 2021. However, Complainant did not contact the EEO Counselor until December 6, 2022, exactly 49 days after the alleged discriminatory incident. The record shows Complainant had completed the Agency’s No Fear training in 2017 and 2018, which included information on seeking EEO counseling and the related timeframes. In addition, in response to Complainant’s appeal, the Deputy District Director, also Complainant’s supervisor, stated that the EEO Poster 72 addressing the relevant counseling contact deadlines was on display on display on the bulletin board on the floor where Complainant works. Based on this evidence, we conclude Complainant had constructive knowledge of the timeframe to contact an EEO Counselor. Complainant’s attorney asserted that on November 22, 2022, he attempted to initiate contact with the USCIS Office of Equal Opportunity and Inclusion (OEO1) via email. However, the OEOI did not receive the emails because it appears they were sent to incorrect addresses.2 2 At least one of the email addresses was sent to a proper Agency official but contained what appears to be a typographical error so was never received. 2022003824 3 Complainant’s attorney contended that he did not receive an email notification from the Agency that his November 22, 2021 email was undeliverable. In addition, the attorney asserted that on December 6, 2021, he sent a second email to the same incorrect email address. However, the second email resulted in a notification his email was undeliverable. On December 6, 2021, Complainant’s attorney sent a third email that included the correct email address for the Division Chief in OEOI, but still had the incorrect email address for the OEOI office. The record reflects that the OEOI website lists the correct email address for filing complaints and provides telephone numbers for the office. Therefore, the correct contact information was available to Complainant and her attorney. However, the attorney’s December 6, 2021 email was beyond the 45-day timeframe as Complainant’s most recent alleged discriminatory incident occurred on October 18, 2021. The Commission has previously held that when provided with the proper address, filling at the wrong address does not constitute a proper filling. See Meggitt v. USPS, EEOC Appeal 01A40408 (February 3, 2004) (formal complaint filed when sent to wrong address despite receipt of proper instructions; Pacheco v. USPS, EEOC Request No. 05930700 (September 10, 1993) (appeal untimely sent to wrong address). On appeal, Complainant presented no persuasive arguments or evidence warranting an extension of the time limit for initiating EEO Counselor contact. CONCLUSION The Agency’s final decision dismissing the formal complaint for untimely EEO Counselor contact 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. 2022003824 4 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). 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. 2022003824 5 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 19, 2022 Date
