Buck H.v.Dep't of Commerce

Equal Employment Opportunity Commission

Dec 13, 2018

EEOC Appeal No. 0120182454 (E.E.O.C. Dec. 13, 2018)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

Buck H.,1
Complainant,

v.

Wilbur L. Ross, Jr.,
Secretary,
Department of Commerce
(Patent and Trademark Office),
Agency.

Appeal No. 0120182454

Agency No. 18-56-59

DECISION

Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC
or Commission) from the Agency's decision dated June 14, 2018, dismissing his 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. and Section 501 of the Rehabilitation Act of
1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Patent Examiner at
an Agency facility in Alexandria, Virginia.

On April 16, 2018, Complainant initiated EEO contact alleging that the Agency discriminated
against him on the bases of disability and reprisal for prior protected EEO activity (refusal to
enter settlement agreement for a prior complaint) when it removed him from employment
effective October 23, 2017.2 Subsequently, on May 21, 2018, Complainant filed a formal
complaint reiterating his allegation of discrimination.

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 We note that the Agency initially removed Complainant from employment effective October
12, 2017, but later rescinded that date and issued an effective date of October 23, 2017.
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In a decision dated June 14, 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 outside of the 45-day regulatory timeframe, he had a pending
EEO complaint that he could have asked to amend, and the Notice of Removal provided
information on the EEO process and relevant deadlines.

The instant appeal from Complainant followed. On appeal, Complainant stated that he filed for
disability retirement in June 2017 due to stress and a hostile work environment at work, and that
he was “mentally incompetent” to initiate EEO contact in a timely manner. In response, the
Agency stated that Complainant communicated with it in writing about another complaint during
the 45-day timeframe relevant here. The Agency provided letters, dated October 28, 2017 and
November 4, 2017, from Complainant.

ANALYSIS AND FINDINGS

The record discloses that the alleged discriminatory event occurred on October 23, 2017, but
Complainant did not initiate contact with an EEO Counselor until April 16, 2018, which is
beyond the forty-five (45) day limitation period.

Regarding the justification for his delay, purportedly attributable to depression, we have
consistently held that, in cases involving physical difficulties or mental health issues, an
extension is warranted only where a complainant is so incapacitated by his conditions that he is
unable to meet the regulatory time limits. See Zelmer v. U.S. Postal Service, EEOC Request No.
05890164 (March 8, 1989); Crear v. U.S. Postal Service, EEOC Request No. 05920700 (October
29, 1992). Here, the evidence is insufficient to establish that Complainant remained
incapacitated to the degree that it prevented him from timely EEO Counselor contact. The
record shows that Complainant communicated with the Agency regarding a prior complaint
during the 45-day statutory timeframe. We find that Complainant has presented no persuasive
arguments or evidence warranting an extension of the time limit for initiating EEO Counselor
contact.

CONCLUSION

Accordingly, we AFFIRM the Agency's final decision dismissing Complainant's complaint.
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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.
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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

December 13, 2018
Date