0120160148
02-03-2016
Alena C.,1 Complainant, v. Sylvia Mathews Burwell, Secretary, Department of Health and Human Services (Indian Health Service), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Alena C.,1
Complainant,
v.
Sylvia Mathews Burwell,
Secretary,
Department of Health and Human Services
(Indian Health Service),
Agency.
Appeal No. 0120160148
Agency No. HHSIHS03602015
DECISION
Complainant filed a timely appeal with this Commission from the Agency's decision dated August 27, 2015, dismissing her complaint of unlawful employment discrimination in violation of the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq. For the following reasons, the Commission AFFIRMS the Agency's final decision.
BACKGROUND
At the time of the events giving rise to this complaint, Complainant worked as a Contract (BPA) Family Services Physician at the Agency's Wewoka Indian Health Center in Wewoka, Oklahoma. On July 30, 2015, Complainant filed a formal complaint alleging that the Agency subjected her to discrimination on the basis of age (75) when, on April 16, 2015, the Agency terminated its three-month employment contract with after she had undergone four days of orientation and training.
The Agency dismissed the claim pursuant to 29 C.F.R. � 1614.107(a)(2) for untimely initial contact with an EEO Counselor. Complainant first contacted an EEO Counselor about the termination on June 10, 2015, which was more than forty-five (45) days after the alleged act of discrimination, and thus not in accordance with 29 C.F.R � 1614.105(a)(1). Complainant stated in the Counselor's Report that she did not initiate contact within 45 days as required because of medical problems such as neck swelling and arm pain requiring her to "spend many days with specialists." The Agency did not find this explanation sufficient to waive or extend the 45-day requirement, and noted that Complainant did not provide any evidence that her medical condition prevented her from contacting a counselor.
CONTENTIONS ON APPEAL
Complainant contends that she has had difficulty communicating with her local EEO office because of untimely mail delivery and difficulty finding housing for work.
The Agency offers no contentions on appeal.
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R. � 1614.105(a)(1) requires that complaints of discrimination 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. Dept. 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.
EEOC regulations provide that the agency or the Commission shall extend the time limits when the individual shows that she was not notified of the time limits and was not otherwise aware of them, that she did not know and reasonably should not have known that the discriminatory matter or personnel action occurred, that despite due diligence she was prevented by circumstances beyond her control from contacting the Counselor within the time limits, or for other reasons considered sufficient by the agency or the Commission. 29 C.F.R. � 1614.105(a)(2).
When a complainant asserts that physical or mental health difficulties prevented contact with a counselor within 45 days, the Commission has consistently held that an extension is only warranted where an individual is so incapacitated by her condition that she is unable to meet the time limits. Mason v. U.S. Postal Serv., EEOC Appeal No. 0120091320 (June 11, 2010). Hospitalization may constitute such a circumstance, but evidence that the complainant was under a physician's care is not dispositive of the issue of whether the complainant was incapacitated. Josey v. Dept. of Health and Human Serv., EEOC Appeal No. 01990127 (Dec. 1, 1999). An assertion of medical incapacitation will not warrant an extension of the regulatory time-limits when the complainant offers no documentation of the medical condition preventing timely contact with an EEO Counselor. Id.
In this case, Complainant's employment was terminated on April 16, 2015, and she contacted an EEO Counselor more than 45 days later, on June 10, 2015. Complainant stated that she was unable to initiate timely contact because of medical problems for which she "spent many days with specialists." However, Complainant does not offer any documentation to indicate that she was incapacitated during this time. Thus, there is insufficient evidence of medical incapacitation to warrant an extension of the 45-day time limit for initiating contact with a counselor.
CONCLUSION
Accordingly, the Agency's final decision dismissing the complaint is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0815)
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 or within twenty (20) calendar days of receipt of another party's timely request for reconsideration. 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, P.O. Box 77960, Washington, DC 20013. 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 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. 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
February 3, 2016
Date
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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