[Redacted], Hedy B, 1 Complainant,v.Alejandro N. Mayorkas, Secretary, Department of Homeland Security (U.S. Coast Guard), Agency.

Equal Employment Opportunity Commission

Jun 8, 2021

Appeal No. 2021002516 (E.E.O.C. Jun. 8, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Hedy B,1 Complainant, v. Alejandro N. Mayorkas, Secretary, Department of Homeland Security (U.S. Coast Guard), Agency. Appeal No. 2021002516 Agency No. HS-USCG-00094-2021 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's decision dated March 19, 2021, dismissing her complaint alleging 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. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Paralegal Specialist, GS-0950-11, at the Agency’s Region 1, Zone 4 facility in Washington, District of Columbia. On December 21, 2020, Complainant filed a formal complaint alleging that the Agency subjected her to a hostile work environment and discrimination on the bases of race (African- American) and disability from July 2018 through February 29, 2020 when: 1. On or about July 2018, the Deputy Chief Counsel failed to act when Complainant reported that the Chief Judge (CJ) harassed her from 2015 until she went on leave 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. 2021002516 2 and filed for disability retirement; 2. On January 24, 2020, the CJ threatened to remove Complainant with a Notice of Removal during her pending retirement application; 3. On February 29, 2020, the Human Resources Operations Chief (HROC) and the CJ constructively discharged Complainant by forcing her into disability retirement.2 The Agency dismissed the entire complaint, pursuant to 29 C.F.R. § 1614.107(a)(2), for untimely EEO Counselor contact. The instant appeal followed. On appeal, Complainant argues that the time limit to contact an EEO Counselor should be extended or tolled. She asserts that she did not know the time limits for contacting an EEO Counselor until she “reached out” to an attorney on September 18, 2020 and was, at that time, informed by her attorney that she had 45 days from the date of the event to file. She asserts that she was on medical leave since July 2018 and was unable to see EEO posters on display in the workplace and would not have remembered the time limits. She also asserts that she had a disability and other underlying medical conditions and was in a high-risk group for COVID-19 and was not able to understand the time limits in filing a complaint. In response, the Agency maintains that Complainant’s initial contact was untimely, noting that the record shows that she took EEO training that put her on notice that she had 45 days from the alleged events to contact an EEO Counselor. The Agency asks that we affirm its dismissal. ANALYSIS AND FINDINGS 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 Regulation 29 C.F.R. § 1614.107(a)(2) states, in pertinent 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, unless the agency extends the time limits in accordance with § 1614.604(c), which provides that the filing limitation period is subject to waiver, estoppel, and equitable tolling. EEOC Regulation 29 C.F.R. §1614.604(c) provides that the time limits are subject to waiver, estoppel, and equitable tolling. 2 Complainant’s formal complaint is not of record. However, the issues outlined in the Agency’s final decision are consistent with those in the EEO Counselor’s report. 2021002516 3 EEOC Regulation 29 C.F.R. § 1614.105(a)(2) provides 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 EEO Counselor within the time limits, or for other reasons considered sufficient by the agency or the Commission. Here, as noted above, the alleged events occurred between July 2018 through February 29, 2020. However, the EEO Counselor’s report indicates that Complainant initially contacted the EEO Counselor on October 20, 2020, which is more than 45 days after the alleged events at issue. Complainant does not dispute that she contacted the EEO Counselor more than 45 days after the alleged events. However, she argues that the time limit should be extended for several reasons, including that she was not aware of the time limits and her medical conditions precluded her ability to timely contact the EEO Counselor. The record shows that, in October 2016, Complainant received NO FEAR Act and anti- harassment training expressly informing her of the time limits regarding an EEO claim. The record also includes photographs of the Agency’s posting of EEO information in the hallway. The Commission has held that constructive knowledge will be imputed where an agency has fulfilled its statutory obligation by posting notices informing employees of their rights and obligations under EEO regulations, as long as the record contains sufficient information from which the Commission could find that the poster contained notice of the time limit for initiating EEO counseling. See Yashuk v. U.S. Postal Service, EEOC Request No. 05890382 (June 2, 1989); and see Pride v. U.S. Postal Service, EEOC Request No. 05930134 (August 19, 1993), citing Polsby v. Shalala, 113 S. Ct. 1940 (1993). Complainant acknowledges that she received training and that there were postings at the Agency but asserts that she forgot or did not remember this information, noting that she was on medical leave, beginning in July 2018. We are not persuaded by her argument and find that she had constructive knowledge of the EEO regulations regarding the time to timely file her complaint. Complainant also asserts that her medical conditions prevented her from timely contacting the EEO Counselor. When a complainant claims that a mental and/or physical condition prevents her from meeting a particular filing deadline, the Commission has held consistently that in order to justify an untimely filing, the complainant must be so incapacitated by the condition as to render her psychologically or physically unable to make a timely filing. See Crear v. United States Postal Serv., EEOC Request No. 05920700 (Oct. 29, 1992); and Zelmer v. United States Postal Serv., EEOC Request No. 05890164 (Mar. 8, 1989). Here, although Complainant asserts that she has “a disability and other underlying medical conditions” she has not offered a sufficient explanation as to how her particular medical conditions prevented her from timely contacting the EEO Counselor. We note that the record includes an email dated February 6, 2020, from Complainant to Agency management, regarding her Notice of Proposed Removal, which suggests she was capable of reading and responding to important Agency documents. 2021002516 4 Therefore, having considered all of Complainant’s reasons of record for her untimely EEO Counselor contact, we find that she has failed to provide sufficient justification for extending or tolling the time limitation period. Accordingly, the Agency’s final decision dismissing Complainant’s complaint is AFFIRMED. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0920) The Commission may, in its discretion, reconsider this appellate decision if Complainant or the Agency submits a written request that contains arguments or evidence that 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 for reconsideration must be filed with EEOC’s Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. If the party requesting reconsideration elects to file a statement or brief in support of the request, that statement or brief must be filed together with the request for reconsideration. A party shall have twenty (20) calendar days from receipt of another party’s request for reconsideration within 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). Complainant should submit his or her request for reconsideration, and any statement or brief in support of his or her request, via the EEOC Public Portal, which can be found at https://publicportal.eeoc.gov/Portal/Login.aspx Alternatively, Complainant can submit his or her request and arguments to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, via regular mail addressed to P.O. Box 77960, Washington, DC 20013, or by certified mail addressed to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, a complainant’s request to reconsider shall be deemed timely filed if OFO receives it by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. An agency’s request for reconsideration must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Either party’s request and/or statement or brief in opposition must also include proof of service on the other party, unless Complainant files his or her request via the EEOC Public Portal, in which case no proof of service is required. 2021002516 5 Failure to file within the 30-day time period will result in dismissal of the party’s request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted together with the 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 (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 June 8, 2021 Date