0120121022
04-27-2012
Jacqueline M. Greene, Complainant, v. Timothy F. Geithner, Secretary, Department of the Treasury (Internal Revenue Service), Agency.
Jacqueline M. Greene,
Complainant,
v.
Timothy F. Geithner,
Secretary,
Department of the Treasury
(Internal Revenue Service),
Agency.
Appeal No. 0120121022
Agency No. IRS-11-0627-F
DECISION
Complainant filed a timely appeal with this Commission from a final Agency decision (FAD) mailed on November 17, 2011, 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 the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Management and Program Analyst with the Agency's MITS (Mgm - Information Technology Services), in Lanham, Maryland. On September 30, 2011, she filed a formal complaint alleging that she was discriminated against based on race (African-American), sex (female), color (Brown), age (54), and reprisal for prior protected EEO activity when on November 4, 2010, she received a performance rating of "Exceeded" rather than "Outstanding." After receiving her appraisal, Complainant asked management to reconsider it and her request was finally rejected on June 29, 2011.
The Agency dismissed the complaint for failure to timely initiate EEO counseling. It reasoned that the alleged discrimination occurred on November 4, 2010, and Complainant did not initiate EEO counseling with regard to her complaint until July 13, 2011, beyond the 45 calendar day time limit.
Complainant contended that on November 23, 2010, she contacted an identified EEO Specialist, who provided her with a contact information sheet with the Agency's EEO and Diversity Field Services' toll free Care Line to raise EEO issues. She contended that she made phone calls to the number, but they would drop. On December 23, 2010, Complainant sent an email to two EEO Specialists about the dropped calls, and asked to be contacted. EEO Specialist 3 contacted her on January 4, 2011. According to the EEO counselor, the Agency's EEO database indicated that Complainant contacted EEO Specialist 3 on January 3, 2011 and April 21, 2011. The EEO counselor wrote that in each instance Complainant decided not to enter the EEO process.
Below, Complainant wrote that it took her time to acknowledge and reach the conclusion that discrimination occurred, i.e., feeling she had a solid reason to think discrimination occurred.
In its FAD, the Agency found that while Complainant timely made contact with individuals logically connected with the EEO process, she did not express an intention to begin the EEO process until July 13, 2011. It also found that the record showed Complainant had a reasonable suspicion of discrimination when she received her appraisal on November 4, 2010.
On appeal, Complainant writes that she got mixed up with dates, and concedes she believed that she was discriminated against on November 14, 2010, when she ranked a personnel package. She writes that when after some effort she was able on January 4, 2011, to make contact with EEO Specialist 3, he informed her that a new incident date and basis was needed prior to her filing an EEO complaint, and suggested she meet with management about her appraisal and file an EEO complaint if it was not resolved.
In opposition to the appeal, the Agency reiterates the findings in the FAD. It also submits notes from EEO Specialist 3 rebutting Complainant's suggestion that he discouraged her from pursing the EEO process. Specifically, EEO Specialist 3 wrote that when he met Complainant on January 4, 2011, she stated management strung her along when she challenged her performance rating; and she could not identify an incident date. He wrote Complainant did not want to file a pre-complaint, but kept him appraised by email of her ongoing efforts with management to get her rating changed.1 EEO Specialist wrote that on March 23, 2011, he contacted Complainant by email, and when she got back with him on April 21, 2011, she wrote she had been out of the office for an extended period dealing with a family emergency. He wrote that he asked Complainant to contact him again, and she did not do so.
ANALYSIS AND FINDINGS
An aggrieved person must seek EEO counseling within 45 days of the date of the alleged discriminatory action, or in the case of a personnel action, within 45 days of the effective date of the action. 29 C.F.R. � 1614.105(a)(1) & .107(a)(2). This time limit is subject to waiver, estoppels, and equitable tolling. 29 C.F.R. � 1614.604(c).
Utilization of an internal agency review or appeal mechanism does not toll EEO time limits for seeking informal counseling. Hosford v. Department of Veterans Affairs, EEOC Request No. 05890036 (June 9, 1989). Accordingly, in of itself, Complainant's efforts to get management to reconsider her rating did not toll her time limit to initiate EEO counseling.
The Commission has held that EEO Counselor contact does not occur until an individual signals his intent to begin the EEO process. Allen v. United States Postal Service, EEOC Request No. 05950933 (July 9, 1996). Complainant contends that she timely initiated EEO contact on November 23, 2010, and when she finally met with EEO Specialist 3 on January 4, 2011, he suggested she meet with management about her appraisal and file an EEO complaint if it was not resolved. EEO Specialist 3's notes indicate Complainant did not want to file a pre-complaint, and did not get back to him after he contacted her again in March 2011. Based on this, we decline to equitably estop the Agency from finding Complainant failed to timely initiate EEO counseling. We find that for purposes of calculating timeliness, Complainant did not initiate EEO counseling until July 13, 2011, and hence she untimely initiated EEO counseling.
CONCLUSION
The FAD is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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 9-18 (November 9, 1999). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC 20013. 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 (Z0610)
If you decide to file a civil action, and if you do not have or cannot afford the services of an attorney, you may request from the Court that the Court appoint an attorney to represent you and that the Court also permit you to file the action without payment of fees, costs, or other security. See Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.; the Rehabilitation Act of 1973, as amended, 29 U.S.C. �� 791, 794(c). The grant or denial of the request is within the sole discretion of the Court. Filing a request for an attorney with the Court does not extend your time in which to file a civil action. Both the request and the civil action must be filed within the time limits as stated in the paragraph above ("Right to File a Civil Action").
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
April 27, 2012
__________________
Date
1 By April 2011, a manager advised Complainant that the EEO process is separate from the Performance process.
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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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