Harrison S.,1 Complainant,v.Dr. Mark T. Esper, Secretary, Department of Defense (Defense Contract Audit Agency), Agency.

Equal Employment Opportunity Commission

Nov 18, 2020

2020004708 (E.E.O.C. Nov. 18, 2020)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Harrison S.,1 Complainant, v. Dr. Mark T. Esper, Secretary, Department of Defense (Defense Contract Audit Agency), Agency. Appeal No. 2020004708 Agency No. DCAA-CASE-CE20-006 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from an Agency decision, dated July 31, 2020, pertaining to his complaint of 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 the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. The Commission accepts the appeal in accordance with 29 C.F.R. § 1614.405. BACKGROUND During the relevant time, Complainant worked at the Agency’s Melbourne Branch Office in Melbourne, Florida. Believing that he was subjected to unlawful discrimination, Complainant contacted an EEO Counselor on February 14, 2020, regarding approximately twenty job announcements that he was either not referred for or referred but not interviewed for. Months later, on May 12, 2020, near the end of the informal stage, Complainant raised nine more claims, including: On September 23, 2019, he was constructively discharged by the Regional Special Program Manager. 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. 2020004708 2 Informal efforts to resolve Complainant’s concerns were unsuccessful. Subsequently, Complainant filed a formal complaint2 based on age, sex, and in reprisal for prior protected activity. In its July 31, 2020 decision, the Agency dismissed the claim for untimely EEO Counselor contact. Complainant’s February 14, 2020 contact was approximately five months after the alleged constructive discharge on September 23, 2019. When asked why he delayed contacting the EEO Counselor, Complainant stated that he did not realize he was constructively discharged until speaking with his representative on January 15, 2020. Specifically, it was while talking to his representative about his other EEO claims that Complainant learned he could raise constructive discharge. Complainant filed the instant appeal. He did not submit any contentions or brief. 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. 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 (Feb. 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. As an initial matter, we note that while Complainant alleges he was constructively discharged, the record reflects that he was actually removed by the Agency. The record contains a September 23, 2019 memorandum regarding “Decision to Remove for Unacceptable Performance”. The memorandum also informed Complainant of various options for review, including filing an EEO complaint and the forty-five day time limit for contacting an EEO Counselor. Therefore, we find that Complainant’s February 14, 2020 contact was well beyond the time limit. Finally, the record also reflects that the parties entered an agreement on September 23, 2019, that permitted Complainant to offer his resignation or retire for personal reasons, in lieu of termination. Complainant was required to immediately sign an SF-52 taking such action, with a September 23, 2019 effective date. If Complainant chose not to do so, the agreement allowed the Agency to “immediately effect a removal decision. . . .” However, days after the agreement as executed, Complainant revoked his acceptance. 2 According to the Agency’s decision, the original mixed-case complaint (Case No. DCAA-CASE- CE20-003), was separated from the instant non-mixed allegation. 2020004708 3 Complainant believed that, despite his revocation, the SF-52 regarding his retirement would continue to be processed. Instead, according to the EEO Intake Form, the retirement paperwork was never processed. On December 17, 2019, Complainant was issued a SF-50 effectuating his termination. However, even if this later date is used, Complainant’s February 14, 2020 EEO contact was still untimely. CONCLUSION The Agency’s final decision to dismiss the formal complaint for the reason discussed above if AFFIRMED. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0620) The Commission may, in its discretion, reconsider this appellate decision if the 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, 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. 2020004708 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 November 18, 2020 Date