0120130130
02-20-2013
Kim E. Campbell, Complainant, v. Kathleen Sebelius, Secretary, Department of Health and Human Services (Indian Health Service), Agency.
Kim E. Campbell,
Complainant,
v.
Kathleen Sebelius,
Secretary,
Department of Health and Human Services
(Indian Health Service),
Agency.
Appeal No. 0120130130
Agency No. HHSIHS05062011
DECISION
Complainant filed a timely appeal with this Commission from the Agency's decision dated March 21, 2012, 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. Upon review, the Commission finds that Complainant's complaint was properly dismissed pursuant to 29 C.F.R. � 1614.107(a)(2), for untimely EEO Counselor contact.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Clinical Nurse, GS-0610 at the Agency's Indian Health Services facility in Sells, AZ. On March 12, 2012, Complainant filed a formal complaint alleging that the Agency subjected her to discrimination on the basis of sex (female) when: she was constructively discharged after she was forced to resign from her position on October 6, 2010.
On March 21, 2012, the Agency dismissed the complaint pursuant to 29 C.F.R. � 1614.107(a)(2) for untimely EEO counselor contact. The Agency determined that Complainant's termination was effective on October 6, 2010, and that Complainant was required to make initial contact with an EEO counselor by November 22, 2010. The Agency noted that Complainant failed to provide sufficient evidence regarding her knee surgery and how it prohibited her from making timely EEO counselor contact. Additionally, the Agency stated that Complainant's official transcript showed that she had four EEO training courses, and that in April 2010 all employees were emailed the area EEO policy statement which contained information regarding the applicable time limits. As a result, the Agency dismissed the complaint for untimely EEO counselor contact.
CONTENTIONS ON APPEAL
On appeal, Complainant contends that she suffered from knee and head injuries which prevented her from contacting an EEO counselor within the 45-day time frame. Complainant contends that she made EEO counselor contact as soon as she was "physically able to do so." Accordingly, Complainant requests that the Commission reverse the Agency's dismissal, and order the Agency to investigate her complaint.
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R. � 1614.107(a)(2) requires that complaints of discrimination should be brought to the attention of the EEO Counselor within forty-five (45) calendar days of an alleged discriminatory event, the effective date of an alleged discriminatory personnel action, or the date that the aggrieved person knew or reasonably should have known of the discriminatory event or personnel action. The Commission had adopted a "reasonable suspicion" standard (as opposed to a "supportive facts" standard) to determine when the 45-day limitation period is triggered. See Ball v. U.S. Postal Serv., EEOC Request No. 05880247 (July 6, 1989). Thus, the limitations period is not triggered until a complainant should have reasonably suspected discrimination, but before all the facts that would have supported a charge of discrimination had become apparent.
The record discloses that the alleged discriminatory event occurred on October 6, 2010, but Complainant did not initiate contact with an EEO Counselor until June 27, 2011,1 which is well beyond the forty-five (45) day limitation period. On appeal, Complainant contends that she suffered from knee and head injuries which prevented her from contacting an EEO counselor within the 45-day time frame. When a complainant claims that a physical condition prevents her from meeting a particular deadline, we have held that in order to justify untimely contact, the complainant must be so incapacitated by the condition so as to render her physically unable to make timely contact. See Zelmer v. U.S. Postal Serv., EEOC Request No. 05890164 (Mar. 8, 1989). There is nothing in the record reflecting that Complainant was so incapacitated during the applicable time frame as to prevent her from contacting an EEO counselor. Complainant contends that Exhibits A-G, which she included with her appeal prove that she was suffering from injuries which precluded her from making contact with an EEO counselor during the applicable time frame. We find the evidence insufficient to establish Complainant's assertion. Complainant has presented no persuasive arguments or evidence warranting an extension of the time limit for initiating EEO Counselor contact.
CONCLUSION
Accordingly, the Agency's final decision dismissing Complainant's complaint 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
___2/20/13_______________
Date
1 Date of initial contact is listed in the Counselor's Report as June 27, 2011, but there is also a note that Complainant contacted the Counselor by phone on April 20, 2011. The Commission notes that both dates are beyond the forty-five (45) day time limitation period.
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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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