EEOC Appeal 2020000298

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Alisa M.,1
Complainant,
v.
William P. Barr,
Attorney General,
Department of Justice
(Federal Bureau of Investigation),
Agency.
Appeal No. 2020000298
Agency No. FBI-2019-00120
DECISION
Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC
or Commission) from the Agency's decision dated July 16, 2019, dismissing her 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.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Language Analyst,
GS-13, at the Agency’s Pittsburgh Field Office facility in Pittsburgh, Pennsylvania.
On March 7, 2019, Complainant filed a formal complaint alleging that the Agency subjected her
to discrimination on the bases of race/national origin (Chinese), sex (female), and reprisal for prior
protected EEO activity when, on December 24, 2018, she received a text message with different
instructions regarding the government shutdown than instructions sent to other employees.
The Agency dismissed the complaint, pursuant to 29 C.F.R. § 1614.107(a)(2), for untimely EEO
Counselor contact.
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.

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The instant appeal followed. On appeal, Complainant argues that the Commission should toll the
applicable timelines because there was confusion regarding EEO deadlines related to the
government shutdown, Complainant’s workload was higher than usual following the shutdown,
and it was not until the conclusion of the shutdown that she could fully determine whether the
misinformation was common or unusual and the consequences of it. She also argues that equitable
estoppel should apply, as she relied on the EEO counselor’s incorrect statement that she could not
amend a prior complaint to include the instant complaint and that her only option was to file a new
complaint.
In response, the Agency argues that the complaint was untimely, as Complainant did not contact
an EEO counselor until more than 45 days after the occurrence of the alleged event. Regarding
Complainant’s arguments, the Agency notes that Complainant’s deadline to contact an EEO
counselor was ended almost two weeks after the government shutdown and that Complainant was
represented by counsel and had the opportunity to amend her prior complaint.
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. EEOC Regulation 29 C.F.R. §1614.107(b)
provides, in pertinent part, that the agency shall dismiss a complaint that fails to comply with the
applicable time limits contained in §1614.105, unless the agency extends the time limits in
accordance with 29 C.F.R. §1614.604(c). EEOC Regulation 29 C.F.R. §1614.604(c) provides that
the time limits are subject to waiver, estoppel and equitable tolling.
Here, the EEO counselor’s report shows that Complainant first contacted the EEO counselor on
February 15, 2019, more than 45 days after December 24, 2018, the date of the alleged event at
issue. Although the Commission extended all complaint processing deadlines that occurred during
the federal government shutdown, from December 22, 2018 through January 25, 2019,
Complainant’s deadline to contact an EEO counselor was February 7, 2019, which was after the
shutdown.2 Therefore, this extension does not apply to her case.
As discussed above, Complainant argues that equitable estoppel should apply in her case. A review
of the EEO counselor’s report indicates that the EEO counselor discussed the fact that
Complainant’s EEO counselor contact was untimely. There is no indication that they discussed
Complainant’s prior complaint and whether she would be able to file an amendment to her prior
complaint. We note that the Administrative Judge did not issue a decision and order in her prior
complaint until September 23, 2019, over 7 months after Complainant contacted the EEO
counselor in the instant case. We also note that Complainant had the same attorney representative
in that prior complaint as she does in the instant complaint.
2 The Commission extended all relevant complaint processing deadlines that fell within the period
of the federal government shutdown by 40 calendar days.

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Therefore, we find Complainant’s assertion that she relied on incorrect information provided by
the EEO counselor when deciding to file the instant complaint as opposed to amending her prior
complaint to be insufficiently supported by the record.
The Commission has consistently held that a complainant must act with due diligence in the pursuit
of her claim. See Becker v. United States Postal Service, EEOC Appeal No. 01A45028 (November
18, 2004); O'Dell v. Department of Health and Human Service, EEOC Request No. 05901130
(December 27, 1990). Complainant has offered numerous arguments in addition to those discussed
above as to why her contact with the EEO counselor was timely or should be equitably tolled,
including that she alleged a pattern of harassment, was confused by the shutdown procedures, and
had a higher than usual workload. However, we have considered all her arguments of record find
she has failed to offer sufficient justification for extending or tolling the time limit.
Accordingly, the Agency's final decision dismissing Complainant's complaint is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0617)
The Commission may, in its discretion, reconsider the decision in this case if the Complainant or
the Agency submits a written request containing arguments or evidence which 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 to reconsider, with supporting statement or brief, must be filed with the Office of Federal
Operations (OFO) within thirty (30) calendar days of receipt of this decision. A party shall have
twenty (20) calendar days of receipt of another party’s timely request for reconsideration in
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). All requests and arguments must be submitted to the Director, Office of Federal
Operations, Equal Employment Opportunity Commission. Complainant’s request may be
submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131
M Street, NE, Washington, DC 20507. In the absence of a legible postmark, the request to
reconsider shall be deemed timely filed if it is received by mail within five days of the expiration
of the applicable filing period. See 29 C.F.R. § 1614.604. The agency’s request must be submitted
in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. §
1614.403(g). The request or opposition must also include proof of service on the other party.
Failure to file within the time period will result in dismissal of your request for reconsideration as
untimely, unless extenuating circumstances prevented the timely filing of the request. Any
supporting documentation must be submitted with your request for reconsideration.

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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
May 14, 2020
Date