0120181690
08-23-2018
Alene S.,1 Complainant, v. Steven T. Mnuchin, Secretary, Department of the Treasury (Internal Revenue Service), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Alene S.,1
Complainant,
v.
Steven T. Mnuchin,
Secretary,
Department of the Treasury
(Internal Revenue Service),
Agency.
Appeal No. 0120181690
Agency No. IRS180271F
DECISION
Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's decision dated March 23, 2018, 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. Upon review, the Commission finds that Complainant's complaint was properly dismissed pursuant to 29 C.F.R. � 1614.107(a)(2), for untimely EEO Counselor contact.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Supervisory Contact Representative at an Agency service center in Kansas City, Missouri. Complainant initiated EEO contact alleging that the Agency subjected her to discrimination on the bases of race (African-American) and sex (female) when (1) on October 27, 2017, the Agency issued Complainant an overall annual performance appraisal rating of "Exceeded" for the year ending September 30, 2017.
On March 16, 2018, Complainant filed a formal complaint reiterating the above allegation and alleging discrimination when (2) the Agency determined Complainant's 2015 and 2016 annual performance ratings and monetary awards improperly.
In a final agency decision, dated March 23, 2018, the Agency dismissed Complainant's complaint pursuant to 29 C.F.R. � 1614.107(a)(2), for untimely EEO Counselor contact. The Agency stated that Complainant initiated EEO contact on January 12, 2018 and the adverse actions she alleged occurred more than 45 days from that date. The Agency stated that Complainant did not present a justification that would warrant waiver, estoppel, or tolling of the regulatory timeframe. The instant appeal from Complainant followed.
Complainant stated that she filed an appeal of her October 2017 rating, and, on December 4, 2017, the Agency failed to change the rating to "Outstanding." Complainant stated that she contacted an EEO Counselor (C1), on December 4, 2017, via Skype "asking what were the steps for the outside EEO process." Complainant stated that she made a phone appointment with C1 for December 6, 2017, and C1 tried to dissuade her from proceeding. Complainant stated that C1 informed her that she had until January 18, 2018 to finalize her claim. Complainant stated, on January 9, 2018, she told a Service Center Director "the only reason I have not already filed EEO is because [you are] new to the Service Center I didn't want it to appear as a negative reflection on [you]." Complainant stated that she contacted C1 again on January 12, 2018 about the EEO intake process and C1 stated January 12 would be her initial contact date. Complainant stated, due to C1's unavailability, she did not receive her pre-complaint package until February 5, 2018.
The record contains an email chain, including December 4, 2017, in which Complainant asked C1 about the steps for the EEO process. The record also contains an Agency Grievance and Authorization for Representative's Access to Official Records, dated November 8, 2017, regarding Complainant's 2017 performance rating. (The Agency Grievance indicates that Complainant is not a bargaining unit employee.)
ANALYSIS AND FINDINGS
Upon review, the Commission finds that Complainant's complaint was properly dismissed pursuant to 29 C.F.R. � 1614.107(a)(2), for untimely EEO Counselor contact. In her complaint, Complainant alleged that the Agency discriminated against her based on race and sex when (1) on October 27, 2017, it issued Complainant an overall annual performance appraisal rating of "Exceeded", and (2) it determined Complainant's 2015 and 2016 annual performance ratings and monetary awards improperly.
The record in this matter shows that, on November 8, 2017, Complainant filed an administrative grievance with the Agency regarding her 2017 performance rating. The record discloses that the most recent alleged discriminatory event occurred on October 27, 2017, but Complainant did not initiate contact with an EEO Counselor until January 12, 2018, which is beyond the forty-five (45) day limitation period.
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 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. Department of the Navy, EEOC Request No. 05970852 (February 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.
The Commission finds that Complainant's electronic communication to an EEO Counselor, C1, on December 4, 2017 did not satisfy EEOC Regulations regarding EEO contact. While a complainant may satisfy the requirement of EEO Counselor contact by contacting an agency official logically connected with the EEO process and by exhibiting an intent to begin the EEO process, Complainant did not satisfy the latter element. Complainant did not exhibit an intent to begin the EEO process prior to contacting C1 on January 12, 2018 regarding the alleged discriminatory event occurring on October 27, 2017. Moreover, Complainant has not shown that she was unaware of the time limitations for seeking EEO counseling or that she was prevented by reasons beyond her control from contacting an EEO Counselor in a timely manner. Complainant stated that she contacted C1 on December 4, 2017 "asking what were the steps for the outside EEO process" and, on January 9, 2018, told an Agency Director "the only reason I have not already filed EEO is because [you are] new to the Service Center I didn't want it to appear as a negative reflection on [you]." Complainant stated that she contacted C1 on January 12, 2018 about the EEO intake process. The circumstances herein do not show an intent to start the EEO process until January 12, 2018, which is untimely for claims (1) and (2).
An employee may use an agency's administrative process, as opposed to a negotiated grievance process, and the EEO complaint process2, however, the Commission has consistently held that utilization of agency procedures, union grievances, and other remedial processes does not toll the time limit for contacting an EEO Counselor. See Black v. Dep't. of the Interior, EEOC Appeal No. 0120112351 (August 19, 2011).
CONCLUSION
Accordingly, we AFFIRM the Agency's final decision dismissing Complainant's complaint.
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. 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
August 23, 2018
__________________
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.
2 See Diefenderfer v. Dep't. of Transportation, EEOC Appeal No. 01980578 (October 7, 1998).
---------------
------------------------------------------------------------
---------------
------------------------------------------------------------
2
0120181690
5
0120181690