[Redacted], Lyda F., 1 Complainant,v.Lloyd J. Austin III, Secretary, Department of Defense (Defense Logistics Agency), Agency.

Equal Employment Opportunity Commission

Sep 29, 2022

Appeal No. 2022003815 (E.E.O.C. Sep. 29, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Lyda F.,1 Complainant, v. Lloyd J. Austin III, Secretary, Department of Defense (Defense Logistics Agency), Agency. Appeal No. 2022003815 Hearing No. 430-2021-00355X Agency No. DLAR-19-0023 DECISION Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from an EEOC Administrative Judge’s decision dated May 31, 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 Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. The Commission accepts the appeal in accordance with 29 C.F.R. § 1614.405. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as an Information Specialist (Systems Analyst), GS-2210-12, at the Agency’s Info. Operations (US) J62CFA facility in Richmond, Virginia. On February 15, 2019, Complainant filed a formal complaint alleging that the Agency subjected her to discrimination on the bases of race (African American), sex (female), color (Black), disability (mental), and reprisal (reasonable accommodation) when: 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. 2022003815 2 a. On August 24, 2018, Complainant’s first line supervisor refused to allow flexibility with the DOD Performance Management Appraisal Program (DPMAP) standards based on Complainant’s disabilities of ADHD and Dyslexia; b. On August 24, 2018, Complainant’s first line supervisor stated if Complainant e could not accept the standards then she should be reassigned elsewhere; c. On an unspecified date, Complainant’s first line supervisor did not refuse to allow other employees to collaborate on their final DPMAP standards; and d. On September 12, 2018, Complainant’s first line supervisor issued Complainant a letter of warning. The Agency accepted the foregoing claims and conducted an investigation into the matter. At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of his right to request a hearing before an EEOC Administrative Judge (AJ). Complainant timely requested a hearing. Prior to the hearing, the Agency filed a Motion to Dismiss the complaint for untimely contact with an Equal Employment Opportunity (EEO) Counselor and failure to state a claim. Additionally, the Agency argued that one claim had already been resolved using the Agency’s administrative grievance process. After considering Complainant’s Response and Objections, on May 31, 2022, the AJ issued a decision granting the Agency’s motion. Specifically, the AJ dismissed claims (a) and (b) for untimely EEO counselor contact, finding that the claims occurred on August 24, 2018, but Complainant did not contact an EEO counselor until November 8, 2018, more than 45 days later. The AJ also dismissed claim (d) for untimely EEO counselor contact and claim (c) for failure to state a claim. Complainant filed the instant appeal and states she is only appealing the AJ’s decision with respect to claims (a) and (b). On appeal, Complainant argues that on September 26, 2018, her supervisor stopped the discussion and indicated he would not be making any changes to her standards and, counting from this date, her EEO counselor contact was timely. She contends that the actual date of supervisor’s final decision regarding the DPMAP standards was September 26, 2018; the date she reasonably suspected discrimination was September 26, 2018, when she “realized [Supervisor] was leading [her] on and was not open to consider [her] disability when determining [her] DPMAP standards; and she brought this to the attention of an EEO counselor on September 26, 2018. Complainant explains that on August 24, 2018, Supervisor advised her that he would not be making any changes to her DPMAP plan. However, after she expressed concerns that her disability was not being considered, Supervisor suggested and scheduled a meeting with union representation to discuss her DPMAP plan. That meeting took place September 7, 2018. On September 10, 2018, Supervisor sent an email with a revised DPMAP incorporating changes suggested by Complainant’s union representative. 2022003815 3 However, on September 12, 2018, Complainant emailed Supervisor to say her doctor was reviewing the DPMAP and he did not want her to sign it because he needed more information. Complainant said she then met with a “EEOC representative [name omitted for privacy]” to discuss her concerns with the plan, actions, and denials being engaged in by Supervisor. She stated that same day, Supervisor denied her request to consult upon and amend her plan, leading her to reasonably suspect discrimination. Complainant contends that although she and her representative may have made statements regarding the August 24, 2018 date, if the record supports a different conclusion, that “correct” factual finding should be adopted. In response, the Agency maintains that the dismissal should be upheld. The Agency asserts Complainant knew as early as August 24, 2018, that Supervisor would not lower the DPMAP performance standards. Additionally, the Agency argues Complainant admitted the above in her complaint explicitly stating that his final decision on the DPMAP issue occurred on August 24, 2018. The Agency acknowledges Complainant listed September 26, 2018 as the most recent act of alleged discrimination on her formal complaint form. However, the Agency argues there is no other reference in the complaint to September 26, 2018, nor any assertion that a discriminatory action occurred on that date. The Agency also notes that Complainant did not correct the August 24, 2018 date when she received her Letter of Acceptance from the Agency. Further, the Agency contends that Complainant’s counsel stated during the Initial Conference that the alleged discriminatory decision was made on August 24, 2018, and the parties agreed that August 24, 2018 was the date to be utilized. Complainant filed an additional brief, in reply to the Agency, showing that her Outlook calendar reflects a meeting scheduled with the “EEOC representative” she named in her brief. However, nothing other than the name of the alleged EEOC representative and the time and location of the meeting is contained in these documents. ANALYSIS AND FINDINGS Ripeness of Appeal We note the Agency has not issued a final decision in this matter. EEOC’s regulations state that when an AJ has issued a decision, the involved agency shall take final action on the complaint by issuing a final order within 40 days of the receipt of the hearing file and the AJ's decision. 29 C.F.R. § 1614.110(a). EEOC Regulation 29 C.F.R. § 1614.109(i) provides that if an agency does not issue a final order within 40 days of receipt of the AJ's decision in accordance with 29 C.F.R. § 1614.110, the decision of the AJ shall become the final action of the Agency. Therefore, in the instant matter, as the Agency has still not issued a final action, the AJ's decision became the Agency's final action by operation of law. Ela O. v Nat'l Sec. Agency, EEOC Appeal No. 0720130021 (Oct. 30, 2015) (AJ's finding of discrimination became agency's final decision by operation of law where agency failed to take action during the 40-day period). We find this matter is now ripe for adjudication. 2022003815 4 EEO Counselor Contact 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 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. Administrative judges may dismiss complaints pursuant to § 1614.107, on their own initiative, after notice to the parties, or upon an agency's motion to dismiss a complaint. 29 C.F.R. § 1614.109(b). 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 (February 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. A complainant satisfies the requirement of counselor contact by contacting an agency official “logically connected” with the EEO process and by exhibiting an intent to begin the EEO process. See Jayna A. v. U.S. Postal Serv., EEOC Appeal No. 2019000179 (Nov. 29, 2018), citing Cristantiello v. Dep’t of the Army, EEOC Appeal No. 01992817 (Dec. 19, 2000), Cox v. Dep’t of Hous. and Urban Dev., EEOC Request No. 05980083 (July 30, 1998); Allen v. U.S. Postal Serv., EEOC Request No. 05950933 (July 9, 1996); Jones v. Dep't of the Army, EEOC Request No. 05900435 (Sept. 7, 1990). While we are sympathetic to Complainant’s argument that September 26, 2018 was the date she reasonably suspected discrimination given that this date is listed repeatedly in the EEO counselor’s report and is the date she listed as the most recent date of discrimination on her formal complaint form, we affirm the AJ’s dismissal of claims (a) and (b) as untimely raised with an EEO counselor. As noted by the AJ, Complainant did not challenge the framing of her formal complaint as written in her Letter of Acceptance, which alleged August 24, 2018 as the date of the discriminatory action in claims (a) and (b). Further, Complainant’s representative indicated during the Initial Conference that August 24, 2018 was the controlling date. Based on the above factual circumstances presented herein, we find that Complainant did not avail herself of the opportunity to address the framing of her complaint. As such, we find that the August 24, 2018 was properly used here. See Marcel M. v. U.S. Postal Serv., EEOC Appeal No. 0120171273 (Jun. 7, 2019). Consequently, Complainant’s initial EEO counselor contact of November 8, 2018 was untimely. Lastly, we note that Complainant has not shown she contacted an Agency official logically connected to the EEO process and exhibited an intent to begin the EEO process when she met with an “EEOC Representative” on September 26, 2018. This is not supported by any evidence in the Report of Investigation or elsewhere in the pre-appeal record. 2022003815 5 The evidence provided by Complainant on appeal fails to show this person was connected to the EEO process or that Complainant exhibited her intent to begin the EEO process at this time. CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the AJ's final decision. 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. 2022003815 6 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 29, 2022 Date