Contact with Agency HR Personnel and Management Does Not Constitute EEO Contact


Via EEOC Takako Y. v. Dep’t of State, EEOC Appeal No. 2021000174:
Contact with Agency Human Resources Personnel and Management Does Not Constitute EEO Contact.  The Commission affirmed the Agency’s dismissal of Complainant’s complaint for failure to timely contact an EEO Counselor.  It was undisputed that Complainant made EEO contact more than 45 days after the alleged discriminatory incident.  While Complainant asserted that she contacted Human Resources, high-level managers, and Agency legal advisors within the time limitation, Complainant stated that she was seeking reconsideration of the Agency’s decision to terminate her candidacy for a specific position.  The record showed that she did not seek to begin the EEO process during that time, and the Commission has consistently held that utilizing other agency procedures does not toll the time limit for contacting an EEO Counselor.  The Commission also noted that Complainant did not specify if, or how, she was prevented from making EEO contact by the pandemic.  Therefore, the Commission found no justification for extending the 45-day limitation period.  Takako Y. v. Dep’t of State, EEOC Appeal No. 2021000174 (Jan. 22, 2021).
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, it is undisputed that Complainant made EEO contact on July 29, 2020, which is more than 45 days after the alleged discriminatory incident. Complainant argues that she made contact with HR on March 13, 2020 and with high-level personnel and Agency legal advisors on May 12, 2020, regarding her candidacy termination due to age. We have consistently held that “a complainant may satisfy the criterion of Counselor contact by initiating [contact] to an agency official logically connected with the EEO process, even if that official is not an EEO Counselor.” Floyd v. National Guard Bureau, EEOC request No. 05890086 (June 22, 1989). Here, however, Complainant describes her March 13, 2020 HR communication and May 12, 2020 personnel and legal advisor communication as seeking reconsideration of the candidacy termination. The record shows that, while Complainant contacted individuals about reconsidering her candidacy termination, she did not seek EEO counseling to begin the EEO process until July 29, 2020. We also note that the Commission has consistently held that the utilization of agency procedures, union grievances, and other remedial processes does not toll the time limit for contacting an EEO Counselor. See Ellis v. United States Postal Service, EEOC Appeal No. 01992093 (November 29, 2000).
Additionally, Complainant argues that due to COVID-19 the 45-day time frame should be extended. However, Complainant does not state with any specificity if or how she was prevented from making EEO counselor contact by the pandemic. As such, we find no justification has been provided for extending the 45-day limitation period.


Howard v. Kerry: Court Denies Motion to Dismiss One Retaliation Claim

Posted: 10:52 am EDT
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Excerpt from Civil Action No. 14-727 (JDB) by Judge John D. Bates of the United States District Court of the District of Columbia:

Kerry Howard, a former Community Liaison Officer at the American consulate in Naples, did not enjoy her working environment. That is an understatement, to be fair: she refers to it as a “cesspool.” Pl.’s Opp’n [ECF No. 21] at 3. In this suit, Howard asserts that she suffered from a hostile work environment that was discriminatory to women, and from discrete instances of retaliation for her attempts to aid fellow employees. But these claims do not match precisely with those she raised during the administrative process. As a result, some must be dismissed, based on the defendant’s motion to do so.
Here, Howard filed administrative charges alleging only two discrete retaliatory acts: her poor evaluation on April 19, 2012, and being placed on a performance improvement plan that same day. See Notice of Dismissed Allegations [ECF No. 13-2] at 5. Both were dismissed administratively for failure to contact an EEO counselor within forty-five days, as required by the first step of the exhaustion process. See id. Since then, however, it has become clear to both parties that Howard did timely request an EEO counselor on May 7, 2012—regarding her performance improvement plan. See Pl.’s Supp. at 2; Def.’s Resp. at 3. This claim was therefore appropriately exhausted. The Court will accordingly deny defendant’s motion to dismiss as to the retaliation claim regarding that performance improvement plan.1
Odious the allegations may be—but Title VII “does not set forth a general civility code for the American workplace.” Burlington, 548 U.S. at 68 (internal quotation marks and citations omitted) (citing precedent that courts “must filter out complaints attacking the ordinary tribulations of the workplace, such as the sporadic use of abusive language” (internal quotation marks omitted)). Thus, the Court will grant the government’s motion to dismiss the remainder of Count I.

More straightforward is the government’s assertion that Howard failed to exhaust her hostile work environment claim. In the hostile work environment context—as opposed to discrete instances of retaliation—it is settled that claims “like or reasonably related to the allegations of the administrative charge may be pursued in a Title VII civil action, notwithstanding the failure to otherwise exhaust administrative remedies.” Bell, 724 F. Supp. 2d at 8 (internal quotation marks, citation, and alteration omitted); see also Morgan, 536 U.S. at 115 (“Hostile environment claims are different in kind from discrete acts.”). “A new claim is ‘like or reasonably related’ to the original claim if it ‘could have reasonably been expected to grow out of the original complaint.’” Bell, 724 F. Supp. 2d at 8–9 (quoting Weber v. Battista, 494 F.3d 179, 183 (D.C. Cir. 2007)).

“Claims of ideologically distinct categories of discrimination and retaliation, however, are not ‘related’ simply because they arise out of the same incident.” Id. at 9 (internal quotation marks omitted). As this Court has pointed out before, “[t]he EEOC charge form makes it easy for an employee to identify the nature of the alleged wrongdoing by simply checking the labeled boxes that are provided. When an employee is uncertain which type of discrimination has occurred, she need only describe it in the text of the charge form.” Williams v. Spencer, 883 F. Supp. 2d 165, 174 (D.D.C. 2012) (internal quotation marks and citation omitted). In Howard’s formal complaint, she checked the box for reprisal—not for sex discrimination. See Formal Compl. of Discrimination [ECF No. 13-1] at 2. And the explanation she attached to the form similarly focuses on reprisal alone. See id. at 3–4. Thus, “[t]o the extent that [Howard] is attempting to claim that [the hostile work environment] was discriminatory based on [sex], as opposed to retaliatory, [the government] is correct that [Howard] did not exhaust her administrative remedies.” Williams, 883 F. Supp. 2d at 174. As a result, the Court will grant the government’s motion to dismiss as to Count II (hostile work environment based on discrimination).

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