Janet Zacney, Complainant,v.Timothy F. Geithner, Secretary, Department of the Treasury, Agency.

Equal Employment Opportunity CommissionJun 3, 2010
0120100881 (E.E.O.C. Jun. 3, 2010)

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