[Redacted], Patricia B., 1 Complainant,v.Gina M. Raimondo, Secretary, Department of Commerce (Bureau of the Census), Agency.

Equal Employment Opportunity Commission

Feb 23, 2022

Appeal No. 2021005165 (E.E.O.C. Feb. 23, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Patricia B.,1 Complainant, v. Gina M. Raimondo, Secretary, Department of Commerce (Bureau of the Census), Agency. Appeal No. 2021005165 Agency No. 63-2021-00091D DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's decision dated August 24, 2021, 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. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as an Administrative Specialist, GG-0301-07/02, at the Agency’s Regional Census Center in Los Angeles, California. On December 30, 2021, Complainant filed a formal complaint alleging that the Agency subjected her to discrimination on the bases of race (African American), sex (female), disability and reprisal 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. 2021005165 2 1. On May 30, 2020, Complainant requested a reasonable accommodation, however, the Agency did not approve the request until July 20, 2020, which was two days prior to her Not-To-Exceed (NTE) date. 2. On unspecified dates prior to July 22, 2020, Complainant was consistently overlooked for promotion while co-workers whom she believed to be less qualified were promoted and extended to work beyond their NTE dates. 3. On unspecified dates prior to July 22, 2020, Complainant did not receive performance awards even though she received two Level 4 performance appraisals. 4. On an unspecified date prior to July 22, 2020, Complainant submitted a reasonable accommodation request and Complainant’s supervisor remarked that the Agency “needs people here that are going to work.” The Agency dismissed the complaint pursuant to 29 C.F.R. §§ 1614.105(a)(1) and 1614.107(a)(2), for untimely EEO counselor contact. The instant appeal followed. ANALYSIS AND FINDINGS EEOC Regulation 29 C.F.R. § 1614.105(a)(1) requires that complaints of discrimination be brought to the attention of the 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. The Commission has adopted a “reasonable suspicion” standard (as opposed to a “supportive facts” standard) to determine when the 45-day limitation period is triggered. See Howard v. Department 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. At issue is whether the Agency properly dismissed the complaint pursuant to 29 C.F.R. § 1614.107(a)(1), for untimely EEO counselor contact. The Agency argues that the 45-day limitation period to initiate EEO contact began on July 8, 2020, because that was the date that Complainant received notification that her NTE date was July 22, 2020. In her formal complaint, Complainant concedes that her last day at work was July 22, 2020. However, she contends that 45-day limitation period was triggered in September 2020, because that was when she learned that more African American women were not extended to work beyond their NTE date. 2021005165 3 Complainant clarifies that she did not file her claim in July because she thought the discriminatory actions against her were isolated, but in September, she realized there was a “systemic pattern” of discrimination against African American women. Despite the argument made otherwise, we find that Complainant reasonably suspected discrimination and/or reprisal on July 22, 2020, which was the date of personnel action. In fact, she concedes she thought she was discriminated against at the time, but did not know this was part of an alleged pattern. Although she subsequently obtained information that might further support her complaint, her timeline began to run on her last day at work. The EEO Counselor’s Report shows that Complainant did not contact an EEO counselor until October 16, 2020, which is more than 45 days after her last day at work. On appeal, Complainant has not provided adequate justification pursuant to 29 C.F.R. § 1614.105(a)(2), to warrant an extension of the time limit for initiating EEO contact. She has not alleged that circumstances beyond her control prevented her from making timely counselor contact, or that she was unaware of the 45-day limitation period. Consequently, we find that her complaint was properly dismissed as untimely raised. CONCLUSION Based on a thorough review of the record, the Agency’s dismissal of the 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 2021005165 4 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. 2021005165 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 February 23, 2022 Date