0120162098
11-02-2016
Darrell K.,1 Complainant, v. John Kerry, Secretary, Department of State, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Darrell K.,1
Complainant,
v.
John Kerry,
Secretary,
Department of State,
Agency.
Appeal No. 0120162098
Agency No. DOS014016
DECISION
Complainant timely appealed to this Commission from the Agency's May 17, 2016 dismissal of his 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
At the time of events giving rise to this complaint, Complainant worked as a Foreign Service Officer (FS-04) at the Agency's Office of Energy Diplomacy in the Bureau of Energy Resources in the District of Columbia.
On May 2, 2016, Complainant filed a formal complaint alleging that the Agency subjected him to discrimination on the basis of disability (cognitive, dyslexia) when:
1. In October 2015, he was not selected for a promotion; and
2. On December 17, 2015, he received a Low Rating Statement ("LRS").
Complainant was passed over for promotion by the Foreign Service Selection Board ("the Board") in October 2015 in large part because of "deficiencies" in his written communication skills, including a failure to improve his proofreading over consecutive rating periods. Complainant alleges that he is more prone than others to these "deficiencies" because he has dyslexia, which he disclosed to the Agency and a few supervisors. Due to his dyslexia, he reads and writes at a markedly slower pace than his peers, and has a higher rate of typographical errors. He compensates for his slower pace by spending additional time on assignments that require reading and writing, and taking a course to improve his writing.
Although he was not selected for promotion in October 2015, Complainant believed he was performing his job well, noting that he consistently met all deadlines, including for written assignments. He did not realize how significantly the negative effects of his dyslexia impacted his employee evaluation ratings until December 17, 2015, when his Career Development Officer ("CDO") provided him with a Low Rating Statement ("LRS") issued by the Board. The LRS explicitly linked Complainant's writing skills to his nonselection in October 2015, stating: "The Board hopes that [Complainant] will take the time to address these deficiencies [in his written communication] so that with time, improved performance will enable him to be competitive for promotion." According to Complainant, writing skills comprise 5% of the skills required in his position description. Complainant argues that by focusing on writing ability over "actual work," the Board's metrics for issuing promotions and the LRS were discriminatory.
Complainant met with his CDO (at his CDO's request) to discuss the LRS further on January 16, 2016. Afterward, Complainant intended to pursue an EEO complaint, but in addition to his usual assignments, Complainant was preparing for two high profile international events. Complainant was extremely busy and did not attempt to contact an EEO counselor until February 10, 2016.
The Agency dismissed Complainant's complaint pursuant to 29 C.F.R. � 1614.107(a)(2), for untimely contact with an EEO counselor.
ANALYSIS AND FINDINGS
In pertinent part, our regulations under 29 C.F.R. �1614.107(a)(2) provide that an agency shall dismiss a complaint or a portion of a complaint that fails to comply with the applicable time limits contained in 29 C.F.R. �1614.105. However, 29 C.F.R. �1614.604(c) provides that an agency or the Commission shall extend the time limits when the individual shows that he or she was not notified of the time limits and was not otherwise aware of them, that he or she did not know and reasonably should not have known that the discriminatory matter or personnel action occurred, that despite due diligence he or she was prevented by circumstances beyond his or her control from contacting the Counselor within the time limits, or for other reasons considered sufficient by the agency or the Commission.
Under 29 C.F.R. � 1614.105(a)(1), complaints of discrimination should be brought to the attention of an 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. (Complainant v. United States Postal Serv., EEOC Appeal No. 0120120499 (Apr. 19, 2012)). In addition, 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 timeliness." Guy v. Dep't of Energy, EEOC Request No. 05930703 (Jan. 4, 1994) (quoting Williams v. Dep't of Defense, EEOC Request No. 05920506 (Aug. 25, 1992)).
In the instant complaint, for Claim 1, we find no evidence that "reasonable suspicion" of discrimination existed in October 2015, when Complainant learned he was not promoted. However, the alleged discriminatory act in Claim 2, the Low Rating Statement ("LRS") linking Complainant's nonpromotion to his writing skills, in itself was sufficient to establish "reasonable suspicion" for both Claims 1 and 2 upon Complainant's receipt on December 17, 2015. Given that an LRS is a personnel action, the 45 day limitation period for Complainant to initiate contact with an EEO counselor was also automatically triggered on December 17, 2015, as the action became effective upon Complainant's receipt. (Complainant aptly notes in his appeal that the Agency erroneously based its calculations the date it issued the LRS, December 14, 2015.) Based on a start date of December 17, 2015, Complainant's opportunity to timely contact an EEO counselor regarding the instant complaint expired on February 1, 2016.
We remind the Agency that a complainant commences the EEO process by contacting an EEO Counselor and "exhibiting intent to begin the complaint process." See Hawkins v. Dep't of the Interior, EEOC Appeal No. 01990377 (July 29, 1999), Gates v. Dep't of the Air Force, EEOC Request No. 05910798 (Nov. 22, 1991) (quoting Moore v. Dep't of Treasury, EEOC Request No. 05900194 (May 24, 1990)). For purposes of timeliness, contact with an agency official who is "logically connected with the EEO process" is deemed a Counselor contact. Jones v. Dep't of the Army, EEOC Request No. 05900435 (Sept. 7, 1990); see Kemer v. General Serv. Admin., EEOC Request No. 05910779 (Dec. 30, 1991). Here, the Agency determined that Complainant did not initiate contact with an EEO counselor until February 23, 2015, when he actually met with a counselor and specifically requested to file a complaint. On appeal, Complainant successfully demonstrates that he exhibited an intent to initiate the EEO process on February 10, 2016, based on an email to the Agency's Office of Civil Rights ("OCR") stating "I would like to speak to someone about an EEO Complaint." We find that Complainant initiated contact with an EEO counselor on February 10, 2016, which still falls outside the February 1, 2016 deadline.2
Regardless of the discrepancies in the timeline, Complainant failed to timely contact an EEO Counselor. 3 We find it unnecessary to examine the Agency's alternate argument for dismissal, that Complainant did not timely file his Formal Complaint.
Request for an Extension
On appeal, Complainant asks that we excuse the delay in contacting an EEO counselor for a number of reasons under 29 C.F.R. �1614.604(c), supra. After thorough review, we find that the Agency provided sufficient evidence that none of these exceptions apply in the instant complaint. We especially reject Complainant's argument that because of his disability, when faced with a heavy workload he was "forced" to choose between pursuing his EEO complaint and timely completing his assignments.
When a complainant claims that a physical condition prevents him or her from meeting a particular filing deadline, we have held that in order to justify an untimely filing, a complainant must be so incapacitated by the condition as to render him or her physically unable to make a timely filing. See Zelmer v. United States Postal Serv., EEOC Request No. 05890164 (Mar. 8, 1989). Nothing in the statements provided by Complainant supports a finding that he was so incapacitated by his dyslexia throughout the applicable period as to prevent him from timely contacting an EEO Counselor. As discussed above (and Complainant successfully argued), a one sentence email was sufficient to establish EEO contact for timeliness purposes. By Complainant's own account, during that time, he "regularly worked 12+ hour days" on written assignments, which he completed on time "despite" his disability. Hence, Complainant was fully capable of timely contacting an EEO counselor.
We find Complainant failed to present adequate justification, pursuant to 29 C.F.R. � 1614.604(c), for extending the 45 day limitation period.
New Claims Raised on Appeal
The regulation set forth at 29 C.F.R. � 1614.107(a)(2) states, in pertinent part, that an agency shall dismiss a complaint which raises a matter that has not been brought to the attention of an
EEO Counselor, and is not like or related to a matter on which the complainant has received counseling. A later claim or compliant is "like or related" to the original complaint if the later claim or compliant adds to or clarifies the original complaint and could have reasonably been expected to grow out of the original compliant during the investigation. See Hurlocker v. Dep't of Veterans Affairs, EEOC Appeal No. 0120141346 (June 27, 2014); referencing Scher v. United States Postal Serv., EEOC Request No. 05940702 (May 30, 1995); Calhoun v. United States Postal Serv., EEOC Request No. 05891068 (Mar. 8, 1990).
On May 19 or 20, 2016, Complainant met with a representative at the Agency's Office of Civil Rights ("OCR") in an attempt to amend the instant complaint to include an additional allegation of discrimination, which occurred on May 12, 2016. Complainant argues that the May 12, 2016 allegation is "like and related" to the instant complaint, and as such it should be included and all claims in the instant complaint considered timely. On May 26, 2016, the Agency re-issued its decision, with an additional paragraph explaining that it could not review the May 12, 2016 allegation because Complainant had not discussed it with an EEO Counselor.4 The Agency forwarded the May 12, 2016 allegation for processing as a separate complaint.
After thorough consideration (including Complainant's extensive arguments on appeal), we find Claims 1 and 2 constitute discrete incidents, and the Agency properly referred the May 12, 2016 allegation as a separate complaint. As it will be addressed separately, we will not discuss the May 12, 2016 allegation further in relation to the instant complaint. However, Complainant may reference the instant complaint as background information.
Dissatisfaction with Agency Processing
Under 29 C.F.R. � 1614.107(a)(8), allegations of dissatisfaction with an agency's processing of a previously filed or pending complaint cannot be the subject of an EEO complaint. Our guidance provides that complaints about the processing of existing complaints should be referred to the agency official responsible for the quality of complaint processing, and/or processed as part of the original complaint. EEOC Management Directive for 29 C.F.R. Part 1614 (EEO-MD-110), Chap. 5 � IV.D, page 5-26 (Aug. 5, 2015); Morris v. Dep't of Def., EEOC Request No. 0520130316 (Aug. 27, 2013)
Once a complainant raises allegations of dissatisfaction regarding the processing of his or her pending complaint with the proper Agency official, that official must add a record of the complainant's concerns and any actions the Agency took to resolve the concerns, to the complaint file maintained on the underlying complaint. If no action was taken, the file must contain an explanation of the Agency's reason(s) for not taking any action. EEO MD-110, supra. If the complainant is still dissatisfied with the Agency's handling of his or her complaint, he or she may appeal the Agency official's response in conjunction with the underlying complaint.
To the extent Complainant's concerns have not already been addressed, we find that the dissatisfaction he describes did not arise in conjunction with the instant complaint. Specifically, Complainant cites difficulties reaching an EEO counselor and scheduling counseling to discuss the May 12, 2016 allegation, which was processed as a separate complaint. Complainant may pursue these allegations by timely contacting the proper Agency official, in reference to the separate complaint relating to the May 12, 2016 allegation.
CONCLUSION
Accordingly, the Agency's final decision dismissing Complainant's complaint is AFFIRMED.
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; EEO 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 (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
November 2, 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.
2 Complainant's alternate argument that the 45 day limitation period should be calculated based on the January 16, 2016 meeting with his CDO was properly rejected by the Agency.
3 We refer the Agency to Chapter 5 of the EEO Management Directive for 29 C.F.R. Part 1614, (Aug. 5, 2015) ("MD-110"), available at https://www.eeoc.gov/federal/directives/md110.cfm and for additional guidance, the Agency may contact its assigned EEO Compliance Officer at the EEOC Office of Federal Operations ("OFO").
4 Complainant did establish contact with an EEO Counselor for purposes of initiating a complaint. As discussed, an OCR Representative is an Agency Official "logically connected with the EEO process." See infra, citations omitted. Examples in the record of indicia of "logical connection" include that the EEO and OCR offices share space and EEO falls within OCR, and that communications related to Complainant's complaint, including the Agency's Final Decision, were issued through OCR. We urge the Agency to review Chapter 5 of the MD-110 or contact an OFO Compliance Officer for further clarification.
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