[Redacted], Gilberto S, 1 Complainant,v.Dr. Mark T. Esper, Secretary, Department of Defense, Agency.

Equal Employment Opportunity Commission

Dec 10, 2020

Appeal No. 2020005267 (E.E.O.C. Dec. 10, 2020)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Gilberto S,1 Complainant, v. Dr. Mark T. Esper, Secretary, Department of Defense, Agency. Appeal No. 2020005267 Agency No. 2020-MDA2013-RR DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's decision dated August 6, 2020, dismissing 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. BACKGROUND During the relevant time, Complainant worked for the Agency as a Human Resources Specialist in Redstone Arsenal, Alabama. On June 29, 2020, Complainant filed a formal complaint alleging that the Agency subjected him to discrimination on the bases of race, sex, religion, color, and age when: 1. On February 19, 2020, management sent law enforcement officials to his home after he resigned from his Resources Specialist position with the Agency; 2. On September 24, 2019, his supervisor allegedly blamed him for the actions and outcome of a contract employee who took responsibility for outcome; 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. 2020005267 2 3. On December 7, 2018, his former supervisor DC, allegedly lied to his supervisor, DH about a work assignment while DC was his supervisor; 4. From October 2019 through February 2020, he performed additional duties as the Billing Official, which were not required of his predecessor; 5. On July 20, 2018, his former supervisor warned Complainant about disagreeing with him; and 6. In July 2018 Complainant’s former supervisor warned Complainant about having religious conversations with colleagues who willingly participated in the conversations. In the instant final decision, the Agency dismissed the formal complaint in its entirety as untimely pursuant to EEOC Regulation 29 C.F.R. § 1614.107(a)(2). The Agency determined that Complainant failed to contact an EEO Counselor in a timely manner. Specifically, the Agency found that Complainant's Counselor contact on June 2, 20202 for events beginning in July 2018 and continuing until February 2020 was beyond the time limitations established by EEOC regulations. This 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. The record discloses that the alleged discriminatory events occurred between July 2018 and February 2020, but that Complainant did not initiate contact with an EEO counselor until June 2, 2020, which is beyond the forty-five (45) day limitation period. On appeal, Complainant has presented no persuasive arguments or evidence warranting an extension of the time limit for initiating EEO counselor contact. Complainant has not alleged that he was unaware of the time limitations for timely contacting an EEO counselor or that he was prevented by circumstances beyond his control from seeking EEO counseling in a timely manner. 2 The record indicates that on June 1, 2020, the Complainant contacted the Commission’s Office of Federal Operations (OFO) via email regarding his concerns. In accordance with EEOC regulations, OFO forwarded Complainant’s email to the Agency’s EEO office on June 2, 2020. Either date was well beyond the 45-day limitation period for initiating timely EEO contact. 2020005267 3 CONCLUSION Accordingly, the Agency's final decision dismissing Complainant's complaint is AFFIRMED for the reasons set forth herein. 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. 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). 2020005267 4 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 10, 2020 Date