0120172783
02-08-2018
Deena B,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
Deena B,1
Complainant,
v.
Steven T. Mnuchin,
Secretary,
Department of the Treasury
(Internal Revenue Service),
Agency.
Appeal No. 0120172783
Agency No. IRS170452F
DECISION
Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's decision dated July 14, 2017, dismissing her complaint of unlawful employment discrimination alleging a 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 an Internal Revenue Agent at an Agency facility located in Long Beach, California.
On April 12, 2017, Complainant initiated EEO contact alleging that the Agency discriminated against her based on disability (work-related injuries to knees, back, and ankles) when, over a two-year period, her manager (S1) delayed processing paperwork for her Office of Workers' Compensation Programs (OWCP) and Department of Labor (DOL) claims.
In a Notice of Right to File a Discrimination Complaint (NORF), emailed June 15, 2017, an EEO Counselor informed Complainant of the right to file a formal complaint within 15 calendar days of receipt of the NORF. The NORF stated that Complainant could submit her complaint via electronic submission, fax, or postal mail.
On July 3, 2017, via fax, Complainant filed a formal complaint alleging that the Agency subjected her to harassment based on disability when: (1) S1 failed to sign her OWCP forms in a timely manner, (2) on April 6, 2017, S1 yelled at her to bring him the OWCP forms so that he could sign them and scolded her about the forms, (3) on May 18, 2017, S1 denied Complainant's request for a travel card, (4) on May 3, 2017, S1 rated Complainant as "fails" in her work review, and (5) S1 placed Complainant's private matters on an outlook calendar that was accessible by others.2
On her fax cover sheet, Complainant stated that she submitted the complaint late because she had overwhelming stress. Complainant stated she had to speak with an Employee Assistance Program (EAP) representative on Wednesday (June 28), meet with a Psychologist on Thursday (June 29), and be absent from work on Friday (June 30) to calm down. Complainant stated that she signed the complaint form on June 27, but it was not complete at that time.
The Agency issued a final decision dismissing Complainant's complaint pursuant to 29 C.F.R. � 1614.107(a)(2), for untimely formal complaint. The Agency stated that Complainant did not show that she was so incapacitated that she could not file her formal complaint in a timely manner.
The instant appeal from Complainant followed. On appeal, Complainant provided a letter from an EAP-contracted, licensed therapist (LT), who stated that Complainant was referred to her on June 28, 2017 for suicidal ideation. LT stated that Complainant was in crisis when she met with her the next day, June 29.
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R. � 1614.106 requires the filing of a written complaint with an appropriate agency official within fifteen (15) calendar days after the date of receipt of the notice of the right to file a formal complaint. EEOC Regulation 29 C.F.R. � 1614.107(a)(2), in pertinent part, provides that the agency shall dismiss a complaint that fails to comply with the applicable time limits contained in � 1614.106.
The record in this case shows that the Agency emailed Complainant a NORF on June 15, 2017. The NORF informed complainant that she had fifteen days from the date of receipt of the notice in which to file a formal complaint, via electronic submission, fax, or postal mail. The record further reflects that Complainant digitally-signed her formal complaint form on June 27, 2017, but did not file the complaint until July 3, 2017, which is beyond the 15-day time-frame. Complainant acknowledged that she submitted the complaint late and stated that she was too stressed to submit it between June 28 and June 30, 2017. She noted that she signed it on June 27, but did not complete the form in full by that time.
After careful review of the record, based on the circumstances herein, we find the Agency properly dismissed Complainant's complaint for untimely filing of the formal complaint. Complainant did not provide adequate justification for waiver, estoppel, or equitable tolling of the applicable time limits. See 29 C.F.R. � 1614.604(c).
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
February 8, 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 We note that Complainant's complaint contains her digital signature dated June 27, 2017, and an acknowledgment of receipt of the NORF on June 15, 2017.
---------------
------------------------------------------------------------
---------------
------------------------------------------------------------
2
0120172783
2
0120172783