Complaint Improperly Dismissed for Raising Matter Not Brought to Attention of EEO Counselor. The Commission reversed the Agency’s dismissal of Complainant’s complaint on grounds that it raised a matter that was not brought to the attention of an EEO Counselor. In dismissing the complaint, the Agency relied on Complainant’s failure to participate in the EEO counseling process, stating that the assigned Counselor attempted to engage Complainant multiple times by email and telephone, but was unable to do so. Complainant stated, however, that he did not receive an initial or final interview or counseling to attempt to informally resolve the matter. The assigned Counselor stated that she could not engage Complainant to conduct counseling, so she issued Complainant a notice of right to file a formal complaint, which he timely did. The Commission found that, contrary to the Agency’s assertions, Complainant raised the instant issues with an EEO Counselor even though no actual counseling sessions occurred, and timely filed a formal complaint when given the opportunity to do so. The Commission noted that it is the Agency’s burden to provide evidence to support its final decisions.
At the time of events giving rise to this complaint, Complainant worked at the U.S. Agency for International Development. On May 17, 2019, Complainant filed a formal EEO complaint alleging that the Department of State (hereinafter referred to as “the Agency”)2 discriminated against him on the bases of race (Asian), sex (male), national origin (Kashmir), religion (Islam), disability (Obsessive Compulsive Disorder (OCD) and Fibromyalgia), and reprisal for prior protected EEO activity when:
1. in March and April 2019, the Agency denied Complainant reasonable accommodation for the FACT course, and
2. in April 2019, the Bureau of Diplomatic Security (BDS) and the Agency subjected Complainant to hostile work environment harassment during the FACT course. Complainant alleged that he was repeatedly subjected to inappropriate “epithets and derogatory stereotypes.”
In his EEO complaint, Complainant stated “Counseling requested but not conducted.”
In a July 9, 2019 final decision, the Agency dismissed Complainant’s complaint pursuant to 29 C.F.R. § 1614.107(a)(2). The Agency reasoned that, “[Complainant d]id not go through EEO Counseling” because his allegations of discrimination were not first discussed with an EEO Counselor. The Agency stated that the assigned Counselor attempted to engage Complainant multiple times (via email and telephone) but was unable to do so. The Agency noted that the Counselor issued the Notice of Right to File (NORF) on May 15, 2019.
The instant appeal from Complainant followed. On appeal, Complainant stated that although he initiated contact with the Agency’s EEO office on April 10, 2019, no counseling or initial/final interview took place and he informed the EEO Counselor that he would be overseas for an extended period. Also, Complainant stated that he learned that the Counselor issued a counseling report on May 17 and June 12, 2019, and the Agency only provided him the second report initially. Further, Complainant stated that the Agency misapplied the standard for dismissal under 29 C.F.R. § 1614.107(a)(2), and failed to conduct EEO counseling as required under federal regulations. Complainant stated that he raised his issues with an EEO Counselor in a timely manner.