0120100881
06-03-2010
Janet Zacney, Complainant, v. Timothy F. Geithner, Secretary, Department of the Treasury, Agency.
Janet Zacney,
Complainant,
v.
Timothy F. Geithner,
Secretary,
Department of the Treasury,
Agency.
Appeal No. 0120100881
Agency No. IRS090701M
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dated November 13, 2009, 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.
On May 7, 2009, complainant contacted an agency EEO counselor and alleged
that she was subjected to discrimination on the bases of disability
(mental) and reprisal for prior protected EEO activity when:
1. management failed to accommodate her disability; and
2. she was removed from her position with the agency as a Tax Examining
Technician, GS-06, effective October 1, 2005.
On September 4, 2009, complainant filed a formal EEO complaint raising
the same claims. The agency dismissed the complaint, pursuant to 29
C.F.R. � 1614.107(a)(2), for untimely EEO Counselor contact. The instant
appeal followed.
EEOC Regulation 29 C.F.R. � 1614.105(a)(1) requires that complaints of
discrimination should 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.
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. Department of the Navy,
EEOC Request No. 05970852 (February 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.
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.
On appeal, complainant's attorney argues that complainant's untimeliness
should be waived for equitable considerations. Complainant's attorney
submits a letter from complainant's treating family physician in support
of the argument that complainant's untimely EEO Counselor contact should
be excused. Therein, complainant's physician states that:
It is my belief within a reasonable degree of medical certainty that
over the better part of the past five years, [complainant] was disabled
and did not have the mental capacity to contact her EEO counselor within
the allotted forty-five days of her discharge from service.
Complainant requested waiver of the time limits. When a complainant
claims that a medical condition prevents 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
her unable to make a timely filing. See Zelmer v. United States Postal
Service, EEOC Request No. 05890164 (March 8, 1989). The same is true
regarding claims of incapacity related to psychiatric or psychological
conditions. See Crear v. United States Postal Service, EEOC Request
No. 05920700 (October 29,
With respect to complainant's contention that her illness affected her
ability to file a claim, we note that this contention is in conflict
with her statement on appeal that that she did not seek counseling
within 45 days of her October 2005 removal because she "did not know
[her] legal rights at that time..." Complainant further states on
appeal that her medical condition improved as early as 2008, when she
was "lifted out of the fog [she] was in due to new medication [taken]
since December 2008 ..." Moreover, the record indicates that complainant
participated in an Oral reply to the agency's removal action on June 13,
2005, in which complainant through counsel, argued that her removal was
discriminatory due to the agency's failure to accommodate her disability.
Based on these facts, we find, however, that the evidence presented is
insufficient to establish that complainant was so incapacitated as to
have been unable to have contacted an EEO counselor within 45 days of
removal in October 2005 and/or to justify her waiting until May 2009 to
contact a counselor.
Accordingly, the agency's final decision dismissing complainant's
complaint is affirmed for the reasons set forth herein.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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), 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 (S0408)
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 (Z1008)
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
June 3, 2010
__________________
Date
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0120100881
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120100881