[Redacted], Terese D., 1 Complainant,v.John P. Roth, Acting Secretary, Department of the Air Force, Agency.

Equal Employment Opportunity Commission

Apr 26, 2021

Appeal No. 2021001893 (E.E.O.C. Apr. 26, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Terese D.,1 Complainant, v. John P. Roth, Acting Secretary, Department of the Air Force, Agency. Appeal No. 2021001893 Agency No. 9P0J2000916 DECISION Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from an Agency decision, dated December 22, 2020, dismissing a formal 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. The Commission accepts the appeal in accordance with 29 C.F.R. § 1614.405. BACKGROUND During the relevant time, Complainant worked as a Knowledge Management Specialist at the Agency’s Joint Base San Antonio-Randolph in Texas. On April 6, 2020, Complainant was informed that she was terminated. Believing that the termination was discriminatory, Complainant contacted an EEO Counselor on August 6, 2020. Informal efforts to resolve Complainant’s concerns were unsuccessful. Subsequently, on November 17, 2020, she filed a formal EEO complaint alleging discrimination based on disability, race (Hispanic), and reprisal for prior protected EEO activity. 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. 2021001893 2 In its December 22, 2020 final decision, the Agency dismissed the formal complaint for untimely EEO Counselor contact. The Agency reasoned that since the termination occurred on April 6, 2020, Complainant needed to contact an EEO Counselor by May 21, 2020 to be timely. Instead, Complainant’s August 6, 2020 contact was months beyond the forty-five day time limit. Complainant filed the instant appeal. 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. 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. EEOC regulations provide 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 Counselor within the time limits, or for other reasons considered sufficient by the agency or the Commission. On appeal, Complainant’s attorney argues that Complainant began the EEO process pro se and receipt of the termination notice triggered her Post Traumatic Stress Disorder (PTSD). Consequently, she “shut down” and “couldn’t leave the house or find the energy to do anything.” When she was able to pull herself together, Complainant reviewed the appeal rights included in the termination letter and emailed the first office listed, the Office of Special Counsel (OSC), on July 13, 2020. When she only received an automated reply, without advice on how to proceed, Complainant sought an attorney. It was only after consulting with her attorney that Complainant understood that she had an EEO matter, not an OSC issue, and “immediately” contacted an EEO Counselor on August 6, 2020. Moreover, Complainant argues that OSC is “logically connected” to the EEO process because it was listed as the first right of appeal in the termination letter, and referenced retaliation. In contrast, the description of the EEO process made “no mention of reprisal or retaliation.” She also asserts that the appeal language in the letter was “deceptive and misleading.” Complainant argues that to dismiss her formal complaint, would be to punish her, not for untimely EEO contact, but for lack of legal knowledge. 2021001893 3 The Commission has consistently held, in cases involving physical or mental health difficulties, that an extension is warranted only where an individual is so incapacitated by his condition that he is unable to meet the regulatory time limits. See Davis v. U.S. Postal Serv., EEOC Request No. 05980475 (Aug. 6, 1998); Crear v. U.S. Postal Serv., EEOC Request No. 05920700 (Oct. 29, 1992). Here, Complainant has only vaguely asserted that PTSD caused her to “shut down” without providing any details, including the length of time, or supportive evidence. As for Complainant’s contentions regarding the content of the termination letter, we are not persuaded. A review of the letter reflects that the sixth paragraph clearly states: “If you consider this action improper, you are entitled to seek corrective action before the Office of Special Counsel or file a complaint of discrimination with the EEO office.” In the two paragraphs that follow, one provides more detail about OSC and the other about the EEOC, including reference to the forty-five day time limit. In closing, the letter also provided a contact number to call with questions. Instead, Complainant admits to only reading some of the information and contacting the OSC on July 14, 2020, more than forty-five days after her April 6, 2020 termination. Complainant’s failure to read the letter completely and avail herself of the assistance offered does not excuse her months-long delay. The Agency’s decision to dismiss the complaint for untimely EEO Counselor contact was proper. CONCLUSION Based on a careful review of the record, the Agency’s final decision 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. 2021001893 4 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. 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. 2021001893 5 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 April 26, 2021 Date