[Redacted], Sharolyn S., 1 Complainant,v.Christine Wormuth, Secretary, Department of the Army, Agency.

Equal Employment Opportunity Commission

Dec 14, 2021

Appeal No. 2021005059 (E.E.O.C. Dec. 14, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Sharolyn S.,1 Complainant, v. Christine Wormuth, Secretary, Department of the Army, Agency. Appeal No. 2021005059 Agency No. ARREDSTON21JUN02453 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's final decision dated September 7, 2021, 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 Human Resource Specialist, GS-9, at the Agency’s Army Civilian Human Resource Agency in Redstone Arsenal, Alabama. On July 28, 2021, Complainant initiated EEO Counselor contact. Informal efforts to resolve her concerns were unsuccessful. On August 23, 2021, Complainant filed a formal EEO complaint alleging that the Agency discriminated against her and subjected her to harassment based on race/national origin (Hispanic) and in reprisal for prior protected EEO activity 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. 2021005059 2 1. On May 25, 2021, Complainant was terminated during her probationary period from her position of Human Resources (HR) Specialist. 2. On or about February 2021, Complainant alleged that she contacted her co-worker to inform her how her supervisor was treating her and creating memorandums against Complainant with the Labor Management and Employee Relations Specialist, and the co-worker informed Complainant that had never experienced such treatment from the supervisor. 3. In February 2021 and frequently throughout July 2020, Complainant alleged that her supervisor constantly issued verbal threats during telephone meetings speaking to Complainant in a demeaning tone, to include yelling and raising her voice, blaming Complainant for errors that were not committed by Complainant, but not blaming other team members who were either White or Black, harshly criticizing Complainant over every small detail, emphasizing withholding Complainant’s career advancement to GS-11, and showing dissatisfaction over her failed attempts to block Complainant’s advancement to GS 9. 4. From February 2021 to May 2021, Complainant’s supervisor issued her memorandums developed by the Labor Management Employee Relations Specialist with untrue information about Complainant in order to damage Complainant’s career. 5. In January 2021, Complainant’s supervisor did not allow Complainant to attend unspecified training, while allowing a White co-worker to attend training and Complainant’s supervisor altered a virtual training session where Complainant arrived early to make it appear to the other attendees as though Complainant arrived extremely late. 6. In December 2020, Complainant’s supervisor denied Complainant’s request to telework remotely for reasons to care for an ill relative but allowed a White employee to telework remotely. 7. In August through November 2020, Complainant alleged that her supervisor would only call her telephonically to instill fear concerning Complainant’s career advancement and not Complainant’s non-Hispanic co-workers. In addition, Complainant’s supervisor intensified her threats by involving her representative and by gathering information about Complainant that was not true. 8. In June 2020, Complainant became aware of her supervisor’s preference for Complainant’s White peers since the White peers received better attention for training; Complainant’s supervisor thanked a White peer for a project both Complainant and the White peer worked together. However, Complainant was never acknowledged. 2021005059 3 9. On or about April 1, 2020, Complainant was singled out and professionally attacked after being unofficially placed under Complainant’s supervisor’s leadership during a realignment; Complainant’s supervisor treated Complainant differently than the other employees on the team and her threats began immediately and intensified after Complainant did not attend the birthday celebration of one of the employees on the team. In its final decision dated September 7, 2021, the Agency dismissed the formal complaint for untimely EEO Counselor contact, pursuant to 29 C.F.R. § 1614.107(a)(2). The Agency found that Complainant’s initial EEO Counselor contact was on July 28, 2021, which it found to beyond the regulatory 45-day limitation period. 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 personnel action, within forty-five (45) days of the effective date of the action. Here, the last alleged discriminatory incident occurred on May 25, 2021. Therefore, Complainant had 45 days, or until July 12, 2021, to timely contact an EEO Counselor. However, Complainant did not initiate EEO Counselor contact until July 28, 2021. Although Complainant has alleged ongoing harassment, at least one of the allegations proffered to support that claim must have occurred within the 45-day limitation period in order to determine that she timely contacted an EEO counselor. See National Railroad Passenger Corp. v. Morgan, 536 U.S. 101, 122 S. Ct. 2061 (2002) (a hostile work environment will not be time barred if all acts constituting the claim are part of the same unlawful practice and at least one act falls within the filing period). Finally, Complainant has not provided justification for extending the limitation period beyond 45 days. CONCLUSION The Agency’s final decision dismissing the formal complaint for untimely EEO Counselor contact is AFFIRMED. 2021005059 4 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). 2021005059 5 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 14, 2021 Date