Anya F.,1 Complainant,v.Steven T. Mnuchin, Secretary, Department of the Treasury (Internal Revenue Service), Agency.

Equal Employment Opportunity Commission

Jan 14, 2020

2020000606 (E.E.O.C. Jan. 14, 2020)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Anya F.,1 Complainant, v. Steven T. Mnuchin, Secretary, Department of the Treasury (Internal Revenue Service), Agency. Appeal No. 2020000606 Agency No. IRS-19-0686-F DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's final decision dated August 6, 2019, dismissing a formal complaint of unlawful employment discrimination in violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. BACKGROUND During the period at issue, Complainant worked as a Contact Representative at the Agency’s facility in St. Louis, Missouri. On July 23, 2019, Complainant filed a formal complaint alleging that the Agency subjected her to discrimination on the basis of disability. On August 6, 2019, the Agency issued a final decision. The Agency determined that the formal complaint was comprised of the following claim: 1. On October 25, 2018, Complainant was terminated during her probationary period. The Agency dismissed the formal complaint for untimely EEO Counselor contact. The Agency reasoned that Complainant’s termination was effective October 25, 2018, but that Complainant 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. 2020000606 2 did not initiate EEO contact until February 19, 2019 outside of the applicable time period. The Agency reasoned that, according to the EEO Counselor’s Report, Complainant asserted that she contacted the union after receiving the termination letter, but the union took a long time to get back to her to recommend that she contact the EEO office. IN its final decision, the Agency noted that the termination letter informed Complainant that if she was alleging discrimination, she should contact an EEO Counselor within 45-days of the effective date of her termination. The Agency further noted that Complainant in her formal complaint indicated that she filed a complaint with the local EEOC office and was told the federal government had a different process. Specifically, the Agency’s final decision provides “[s]he wrote that at the time, the government was shutdown, and she contacted a Counselor when the shutdown ended. Complainant included no documentation to indicate when she filed a complaint with an EEOC office or when it notified her that she was not using the correct forum. Further, Complainant’s explanation is at odds with the information contained in the [EEO Counselor’s Report], which refers to Complainant stating that she contacted the [union] regarding her termination, and when a [union] representative finally got back to her in February 2019, the representative advised her that she should have contacted EEO, which she then did.” Final Agency Decision at 2. The Agency also dismissed Complainant’s formal complaint on the grounds it was untimely filed. Specifically, the Agency reasoned that Complainant listed June 3, 2019, as the day she received the Notice of Right to File a Formal Complaint (Notice) but she did not file her formal complaint until July 23, 2019, outside of the applicable time limit. The instant appeal followed. On appeal, Complainant asserts that her disability caused mental incapacitation. Complainant asserts that she was being treated for different medical conditions and that when she read the termination letter she was so incapacitated at the time, she paid no attention to the 45-day timeframe. 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 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. Dep’t 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 he was not notified of the time limits and was not otherwise aware of them, that he did not know and reasonably should not have known that the discriminatory matter or personnel action occurred, that despite due diligence he was prevented by circumstances 2020000606 3 beyond his control from contacting the Counselor within the time limits, or for other reasons considered sufficient by the agency or the Commission. The Agency properly dismissed the instant formal complaint for untimely EEO Counselor contact. The record reflects that Complainant’s termination was effective October 25, 2018. Thus, she should have initiated EEO Counselor contact by Monday, December 10, 2018. The EEO Counselor’s Report reflects that Complainant asserted that she contacted the union initially and the union took a long time to respond. The record contains a copy of the termination letter dated October 25, 2018. Therein, the letter provides, in pertinent part, that “[s]hould you allege that the action taken against you was base in whole or in part on discrimination because of race, color, relegation, sex, age, national original, or physical or mental disability, you may appeal the discrimination allegation …The allegation must be brought to the attention of an Equal Employment Opportunity (EEO) Counselor within 45-calendar days of the effective date of the action.” Thus, we find Complainant had notice of the 45-day time limit to contact an EEO Counselor. To the extent that Complainant asserts that she contacted the union, the termination letter expressly stated to contact an EEO Counselor for allegation of disability discrimination. In addition, the Commission has consistently held that use of internal agency procedures, such as union grievances, and other remedial processes does not toll the time limit for contacting an EEO Counselor. See Kramer v. United States Postal Service, EEOC Appeal No. 01954021 (October 5, 1995); Williams v. United States Postal Service, EEOC Request No. 05910291 (April 25, 1991): Ellis v. United States Postal Service, EEOC Request No. 01992093 (November 29, 2000). Moreover, to the extent that Complainant alleges that she was incapacitated due to her disability and thus the time limit should be waived, we disagree. We have consistently held, in cases involving physical or mental health difficulties, that an extension is warranted only where an individual is so incapacitated by his condition that he is unable to meet the regulatory time limits. See Davis v. U.S. Postal Serv., EEOC Request No. 05980475 (Aug. 6, 1998); Crear v. U.S. Postal Serv., EEOC Request No. 05920700 (Oct. 29, 1992). We acknowledge that the record contains documentation from a doctor dated October 28, 2016 that she was being treated for various medical conditions. In addition, the record contains a letter from a doctor dated July 8, 2019. Therein, the physician stated, in pertinent part, that “[Complainant is under my care and received the incorrect dosage of her seizure medication form [March 15, 2019-June 15, 2019]. This caused her condition to be uncontrolled and the nature of her condition causes lack of concentration/mental focus and increase in depression symptoms that affect her overall quality of life and work performance. This issue has now been resolved with correction of her seizure medication dosage.” However, we are not able to find based on the record before us, that Complainant was so incapacitated during the applicable time period October 26, 2018-December 10, 2018, that she was unable to contact an EEO Counselor. Finally, Complainant, in her formal EEO complaint alleges that she first contacted an EEOC field office and thus the applicable time limit should be waived. We are not persuaded by this assertion. 2020000606 4 Complainant does not provide any documentation that she initially contacted the EEO field office. In addition, this explanation for her delay in contacting an EEO Counselor is not consistent with her initial reason set forth in the EEO Counselor’s Report (that she first contacted the union). Based on the foregoing, we find that Complainant has not provided sufficient justification for extending the applicable time limit. Accordingly, we AFFIRM the Agency’s final decision dismissing Complainant’s complaint.2 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). 2 Because we affirm the Agency’s dismissal for the reasons set forth herein, we need not discuss the Agency’s alternate grounds for dismissal. 2020000606 5 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 January 14, 2020 Date