[Redacted], Mica B., 1 Complainant,v.Andrew M. Saul, Commissioner, Social Security Administration, Agency.Download PDFEqual Employment Opportunity CommissionAug 9, 2021Appeal No. 2021002412 (E.E.O.C. Aug. 9, 2021) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Mica B.,1 Complainant, v. Andrew M. Saul, Commissioner, Social Security Administration, Agency. Appeal No. 2021002412 Agency No. ATL-17-0968 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's decision (FAD) dated February 8, 2021, dismissing her complaint alleging unlawful employment discrimination in violation of the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Senior Attorney Advisor at the Agency’s Office of Hearing Operations in Knoxville, Tennessee. The record reflects that Complainant had filed several EEO complaints prior to the events at issue. As noted in the Agency’s FAD, on October 4, 2013, Complainant filed a formal EEO Equal Employment Opportunity (EEO) complaint in ATL-13-0621-SSA. On December 30, 2013, Complainant filed a formal EEO complaint in ATL-13-0859. The Agency accepted and consolidated Complainant’s complaints on March 15, 2014. (Agency Appeal Brief, Ex. 2). On December 12, 2014, Complainant requested a hearing on her consolidated complaints. On April 7, 2015, and on September 18, 2017, Complainant filed motions to amend her complaints at hearing. (Agency Appeal Brief, Ex. 3). On September 8, 2020, the EEOC Administrative Judge (AJ) issued an Order Granting in Part and Denying in Part Complainant’s Motions to Amend. 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. 2021002412 2 The Order held that a portion of the proposed amendments were not sufficiently like or related to the claims at issue in her consolidated complaints. Therefore, the AJ remanded those claims back to the Agency to process as a separate EEO complaint. The EEOC AJ ordered that the Agency should use the dates Complainant filed her motions as the initial contact dates for these claims for timeliness purposes, stating: The Agency shall COMMENCE processing the requested amendments that are denied (and not covered by a settlement agreement) herein as a separate EEO complaints, and April 7, 2015 and September 18, 2017 shall be used respectively, considering the requests contained in each motion, under and pursuant with 29 C.F.R. § 1614.105(a) for timeliness purposes. (Agency Appeal Brief, Ex. 4, emphasis in original). The remaining issue left to be remanded back to the Agency to process as a separate EEO complaint was the matter set forth in Complainant’s September 18, 2017 Motion to Amend: Whether Complainant was subjected to discrimination on the basis of her disability (physical and mental), reprisal (prior EEO activity), sex (female; in the context of domestic violence and sexual stereotyping), race (Caucasian) and age (DOB: 05/28/1960) when, from the period of 2000 to fall of 2013, the Agency refused Complainant’s requests for reasonable accommodation and failed to engage in the interactive process. Specifically, Complainant alleges that the Agency refused her requests for reasonable accommodation with respect to her requests to verbally transcribe decisions and some of her requests to work from home. Agency Appeal Brief, Ex. 3, pp. 9-10. As ordered by the AJ, the Agency processed this claim as a new complaint and Complainant was subsequently issued a Notice of Right to File. On January 5, 2021, Complainant filed a formal complaint alleging that the Agency subjected her to discrimination on the basis of disability when, from April 2000 until Fall 2013, management did not provide reasonable accommodations (RA) for her to adequately perform job duties and hindered the RA process by requesting excessive medical documentation. The Agency dismissed this claim in accordance with 29 C.F.R. §1614.107(a)(2) for untimely EEO counselor contact. Complainant filed the instant appeal. On appeal, Complainant contends the Agency misapplied the laws governing the acceptance or dismissal of claims and the Agency improperly dismissed all of Complainant’s claims under 29 CFR 1614.107(a)(2) and 29 CFR 1614.105. Complainant argues the Agency has not met its burden to sufficiently develop the record with respect to timeliness and it has not provided evidence or proof to support its FAD. 2021002412 3 The Agency contends on appeal that Complainant’s complaint was properly dismissed because her contact with an EEO counselor was untimely and because Complainant is trying to relitigate issues from her earlier EEO complaints and/or she waived these claims as part of a prior 2009 settlement agreement. 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 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. EEOC Regulation 29 C.F.R. § 1614.107(a)(2) provides for the dismissal of complaints where the complainant did not initiate 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 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 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. Complainant is alleging discrimination occurred during the period from April 2000 until Fall 2013. Thus, using the date most favorable to Complainant, she needed to contact an EEO counselor within forty-five (45) days of November 30, 2013, in other words, on or before January 14, 2014. She did not raise issues of discrimination related to reasonable accommodation until her Motion to Amend the prior complaint on September 18, 2017. This is well outside the proscribed period. Despite her assertions that she raised this issue in EEO counseling in 2013 or that her Motion to Amend in September 2017 was merely a clarification of prior issues, she has not provided any evidence to support this assertion. It is true that 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. However, given that Complainant filed two other EEO complaints in 2013 (and had previously filed an EEO complaint in or before 2009), she should have reasonably suspected at that time that any denial of reasonable accommodation was also potentially discriminatory. Similarly, while Complainant argues the Agency should extend the time limit, she has not provided any actual evidence to show that she was not aware of the time limits, that she did not know or reasonably should not have known of the discriminatory matter, or that she was prevented from contacting an EEO counselor at that time. 2021002412 4 Thus, Complainant’s EEO counselor contact was not timely in this matter and the Agency correctly dismissed her complaint pursuant to 29 C.F.R. § 1614.107(a)(2). CONCLUSION The Agency's final decision dismissing the formal complaint is AFFIRMED for the reasons discussed above. 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. 2021002412 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 August 9, 2021 Date Copy with citationCopy as parenthetical citation