Myrna S.,1 Complainant,v.Carolyn W. Colvin, Acting Commissioner, Social Security Administration, Agency.

Equal Employment Opportunity Commission

Jan 8, 2016

0120142595 (E.E.O.C. Jan. 8, 2016)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

Myrna S.,1
Complainant,

v.

Carolyn W. Colvin,
Acting Commissioner,
Social Security Administration,
Agency.

Appeal No. 0120142595

Agency No. HQ-14-0348-SSA

DECISION
Complainant filed an appeal with this Commission from the Agency's decision dated June 18,
2014, 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. For the
following reasons, the Commission AFFIRMS the Agency’s final decision.

BACKGROUND

On May 13, 2014, Complainant filed a formal complaint alleging that the Agency subjected
her to sexual harassment on the basis of sex (female) when:

Complainant received verbal advances and emails, and engaged in an affair with her
first line supervisor which lasted from August to December 2011, when her supervisor
vacated his position.

The Agency dismissed Complainant’s complaint pursuant to 29 C.F.R. § 1614.107(a)(2), for
untimely EEO Counselor contact. The Agency noted Complainant initially contacted the EEO
Counselor on March 16, 2014. The Agency stated that the alleged discriminatory event
occurred from August 2011 to December 2011. The Agency noted that more than 45 days
elapsed between the date of the event and the date of contact. The Agency recognized that on
March 24, 2014, in response to the EEO Counselor’s question to Complainant, she stated that

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.
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the reason she did not contact the EEO Office within the 45-day timeframe was due to her
anxiety, depression, trauma and hospitalization, and she forgot about the EEO training she
received during her orientation in 2010.

The Agency found that EEO posters were prominently displayed in Complainant’s office at the
time that this issue took place. The Agency stated Complainant admitted that she received
information regarding the timeframe for counselor contact at orientation training she received
in 2010, but forgot. The Agency determined Complainant had not provided a reasonable
explanation regarding why she did not contact an EEO Counselor within the 45-day time
period.

On appeal, Complainant states that the reasons for her untimeliness in contacting an EEO
Counselor were: (1) she took leave to deal with personal issues exemplified by extreme stress,
which kept her from work during the filing period; (2) the holiday (Christmas break in 2011)
kept her from timely filing a complaint; and (3) her mental state, as evidenced by attached
paperwork from a hospital showing her admissions during the relevant time period, was such
that she was not mentally fit to file a complaint against the Agency. Complainant stated the
first hospital admission was on January 17, 2012, less than one month after her stress was
exaggerated by events at work.

ANALYSIS AND FINDINGS

EEOC Regulation 29 C.F.R. §1614.105(a)(1) provides that an aggrieved person must initiate
contact with an EEO Counselor within 45 days of the date of the matter alleged to be
discriminatory or, in the case of a personnel action, within 45 days of the effective date of the
action. EEOC Regulation 29 C.F.R. §1614.105(a)(2) allows the agency or the Commission to
extend the time limit if the complainant can establish that Complainant was not aware of the
time limit, that Complainant did not know and reasonably should not have known that the
discriminatory matter or personnel action occurred, that despite due diligence Complainant was
prevented by circumstances beyond her control from contacting the EEO Counselor within the
time limit, or for other reasons considered sufficient by the Agency or Commission.

The record discloses that the alleged discriminatory events occurred in December 2011, but
that Complainant did not initiate contact with an EEO Counselor until March 16, 2014, which
is beyond the applicable 45-day limitation period. We find Complainant’s contentions that she
was on leave and that the Christmas holiday fell within the applicable time frame do not
constitute acceptable reasons for a delay in contacting the EEO Counselor.

With regard to her claim of incapacitation, we note the only medical documentation in the
record is a MyChart listing of Complainant’s hospitalizations from January 2012 through
March 2014, showing Complainant was at the hospital for a total of approximately 18 days
during this time frame. The listing indicates that during the applicable 45-day limitation period
Complainant was admitted to Fairfax Hospital Emergency Department from January 17, 2012,
through January 18, 2012, and that she was in the Alexandria Emergency Department on
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February 13, 2012. The record does not contain an explanation as to the reason Complainant
was at the hospital on the dates identified. Upon review, we find the record does not show that
Complainant was so incapacitated during the relevant time frame so as to prevent her from
timely contacting an EEO Counselor. Thus, we find the Agency properly dismissed
Complainant’s complaint for untimely EEO Counselor contact.

CONCLUSION

Accordingly, the Agency’s final decision dismissing Complainant’s complaint is AFFIRMED.

STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0815)

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 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, 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
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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

January 8, 2016
Date