Bula P.,1 Complainant,v.Jacob J. Lew, Secretary, Department of the Treasury (Internal Revenue Service Office of Chief Counsel), Agency.

Equal Employment Opportunity Commission

May 25, 2016

0120151636 (E.E.O.C. May. 25, 2016)

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

Bula P.,1
Complainant,

v.

Jacob J. Lew,
Secretary,
Department of the Treasury
(Internal Revenue Service Office of Chief Counsel),
Agency.

Appeal No. 0120151636

Agency No. IRS151012F

DECISION

Complainant filed a timely appeal with this Commission from the Agency's decision dated
March 13, 2015, 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.
and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C.
§ 791 et seq. Upon review, the Commission finds that the Agency’s dismissal pursuant to 29
C.F.R. § 1614.107(a)(2), for untimely EEO Counselor contact should be modified.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Revenue Agent at
the Agency’s Small-Business-Self-Employed Division in Seattle, Washington. On November
24, 2014, Complainant resigned from her position by submitting a letter of resignation to her
supervisor. By electronic mail, she sent a copy of her letter of resignation, together with a
cover letter, to three Agency officials. The email contained the names but not the titles of the
three officials. On January 12, 2015, Complainant contacted an EEO Counselor. On March
7, 2015, Complainant filed a formal complaint alleging that the Agency subjected her to
discrimination on the bases of sex (female) and disability when:

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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1. on November 3, 2014, she was denied a reasonable accommodation for a temporary
disability;

2. on November 24, 2014, she was constructively discharged due to her denial [sic] of
an accommodation for a temporary disability;

3. on March 31, 2014, she learned she would not be given a manager’s award or
compensation for higher grade duties she performed in 2012; and

4. between 2009 and June 16, 2014, she was harassed by a coworker and nothing was
done to discipline the coworker.

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. 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.

Claims 1 & 2

Complainant did not initiate contact with an EEO Counselor until January 12, 2015, more than
45 days after any of the discriminatory events alleged in the complaint. However,
Complainant contends that her November 24, 2014 email to Agency officials communicating
her resignation satisfies the EEO contact requirement.

The Commission has held that a complainant satisfies the criterion 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. See Allen v. U.S. Postal Service, EEOC Request No.
05950933 (July 8, 1996); Floyd v. National Guard Bureau, EEOC Request No. 05890086
(June 22, 1989), Dumaguidndin v. Department of the Navy, EEOC Appeal No. 01954218
(April 1, 1996).

Here, Complainant’s November 24, 2014 email to Agency officials, which raises
“discrimination”, “refus[al] to accommodate” and “harassment” as reasons for her resignation,
arguably exhibits an intent to “begin the EEO process.” The Agency does not address this
issue although Complainant raises it in her appeal. Similarly, the Agency does not discuss, nor
does the record reveal, the relationship “with the EEO process” of the officials who received

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Complainant’s email. The Commission has held that, where, as here, there is an issue of
timeliness, “[a]n agency always bears the burden of obtaining sufficient information to support
a reasoned determination as to the timeliness.” Guy v. Department of Energy, EEOC Request
No. 05930703 (January 4, 1994) (quoting Williams v. Department of Defense, EEOC Request
No. 05920506 (August 25, 1992)). The Agency has failed to do so. The Agency will be
ordered to conduct a supplemental investigation to address these issues.

Claims 3 & 4

The record discloses that the last discriminatory event alleged in these claims occurred on June
16, 2014. Complainant did not initiate contact with an EEO Counselor until, as discussed
above, at the earliest, November 24, 2014, which is beyond the forty-five (45) day limitation
period. On appeal, Complainant has presented no persuasive arguments or evidence
warranting an extension of the time limit for initiating EEO Counselor contact. These claims
were properly dismissed for untimely Counselor contact.

CONCLUSION

For the foregoing reasons, we AFFIRM the Agency’s dismissal of Claims 3 and 4, REVERSE
the Agency’s dismissal of Claims 1 and 2, and REMAND Claims 1 and 2 to the Agency for
further processing in accordance with the ORDER below.

ORDER (E0610)

The Agency is ordered to process the remanded claims in accordance with 29 C.F.R. §
1614.108. The Agency shall acknowledge to the Complainant that it has received the
remanded claims within thirty (30) calendar days of the date this decision becomes final. The
Agency shall issue to Complainant a copy of the investigative file and also shall notify
Complainant of the appropriate rights within one hundred fifty (150) calendar days of the date
this decision becomes final, unless the matter is otherwise resolved prior to that time. If
Complainant requests a final decision without a hearing, the Agency shall issue a final decision
within sixty (60) days of receipt of Complainant’s request.

A copy of the Agency’s letter of acknowledgment to Complainant and a copy of the notice that
transmits the investigative file and notice of rights must be sent to the Compliance Officer as
referenced below.

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STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0416)

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. The requests 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 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 (T0610)

This decision affirms the Agency's final decision/action in part, but it also requires the Agency
to continue its administrative processing of a portion of your complaint. 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 on both that portion of your complaint which
the Commission has affirmed and that portion of the complaint which has been remanded for
continued administrative processing. In the alternative, you may file a civil action after one
hundred and eighty (180) calendar days of the date you filed your complaint with the Agency,
or your appeal with the Commission, until such time as the Agency issues its final decision on
your complaint. 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

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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 25, 2016
Date