Phyllis G.,1 Complainant,v.James N. Mattis, Secretary, Department of Defense (Defense Finance & Accounting Service), Agency.

Equal Employment Opportunity Commission

Jul 25, 2018

0120181753 (E.E.O.C. Jul. 25, 2018)

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

Phyllis G.,1
Complainant,

v.

James N. Mattis,
Secretary,
Department of Defense
(Defense Finance & Accounting Service),
Agency.

Appeal No. 0120181753

Agency No. DFAS-00028-2018

DECISION

Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC
or Commission) from the Agency’s decision dated March 23, 2018, dismissing her complaint of
unlawful employment discrimination in violation of Section 501 of the Rehabilitation Act of 1973
(Rehabilitation Act), as amended, 29 U.S.C. § 791 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 an Accounting
Technician, GS-0525-06, at the Agency’s Accounts Payable Entitlements Branch I facility in
Rome, New York. On February 21, 2018, Complainant filed a formal complaint alleging that the
Agency subjected her to discrimination on the basis of disability (mental: paranoia and physical:
herniated discs, fractured shoulder, and collarbone) when, on or about January 23, 2015,
management subjected Complainant to a hostile work environment and constructively discharged
Complainant from her position.

The record reflects that during a January 23, 2015, meeting with Agency’s Rome Deputy Director,
Complainant submitted her badge, packed her belongings, reported her intent to resign from her

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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position, and left her work facility. On January 27, 2015, management informed Complainant of
an SF-50 personnel action effectuating her resignation as of January 23, 2015. Three years later,
on January 31, 2018, Complainant contacted an EEO Counselor.

The Agency dismissed Complainant’s complaint pursuant to 29 C.F.R § 1614.107(a)(2), for failure
to comply with applicable time limits. The Agency stated that Complainant did not contact an
EEO Counselor within 45 days of the date of the matter alleged to be discriminatory.

ANALYSIS AND FINDINGS

The regulation set forth at 29 C.F.R. §1614.107(a)(2) provides, in relevant part, that an agency
shall dismiss a complaint which fails to comply with the applicable time limits contained in 29
C.F.R. § 1614.105, which requires initiating contact with an EEO Counselor within forty-five (45)
days of the date of the matter alleged to be discriminatory or, in the case of 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. Dep't of the Navy, EEOC Request No.
05970852 (Feb. 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.

Here, the record indicates that the alleged discriminatory event occurred on January 27, 2015, but
Complainant did not initiate contact with an EEO Counselor until January 31, 2018, which is well
beyond the forty-five (45) day limitation period. Complainant had or should have had a reasonable
suspicion of discrimination regarding her claim more than forty-five (45) days prior to her initial
contact with an EEO Counselor. On appeal, 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.

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STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0617)
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. A party shall have
twenty (20) calendar days of receipt of another party’s timely request for reconsideration in
which to submit a brief or statement in opposition. 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. Complainant’s request may be
submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131
M Street, NE, Washington, DC 20507. 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 agency’s request must be submitted
in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R.
§ 1614.403(g). 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.
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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

July 25, 2018
Date