0120162170
09-01-2016
Tamara G.,1 Complainant, v. Jeh Johnson, Secretary, Department of Homeland Security (Immigration and Customs Enforcement), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Tamara G.,1
Complainant,
v.
Jeh Johnson,
Secretary,
Department of Homeland Security
(Immigration and Customs Enforcement),
Agency.
Appeal No. 0120162170
Agency No. HS-ICE-24704-2015
DECISION
Complainant filed a timely appeal with this Commission from the Agency's final decision dated May 20, 2016, dismissing a formal 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., Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
BACKGROUND
On August 17, 2015, Complainant, a former Management Program Technician for the Agency in Long Beach, California, initiated EEO Counselor contact. Informal efforts to resolve her concerns were unsuccessful.
On November 17, 2015, Complainant filed the instant formal complaint alleging that the Agency subjected her to discrimination on the bases of race, sex, religion, disability, age, and in reprisal for prior EEO activity when:
1. from October 19, 2005 to March 30, 2009, she was assigned to work in a confined and solitary room to maintain boxes that ranged in weight from 50-100 lbs, for cases that ranged from 1-500 per box that caused injury to her shoulders;
2. on January 4, 2008, she applied for Vacancy Announcement #DAL-161870-OI-MP-MEB, Mission Support Specialist, and was not selected for the position;
3. on January 4, 2008, she applied for Vacancy Announcement #MHCMP165551, SLH, Import Specialist, and was not selected for the position;
4. on January 28, 2008, her co-workers were discussed her hernia, and other medical information;
5. on February 6, 2008, she was charged with Absence Without Leave for being one hour late;
6. on February 28, 2008, she applied for Vacancy Announcement #174681, Mission Support Specialist, with an overall score of 99, and was not selected for the position;
7. in June 2008, her supervisor told her that she was being terminated from her position. However, at the time, Complainant was in the hospital and instead was placed on leave without pay from June 2008 until July 31, 2012;
8. in August 2008, a male coworker grabbed her arm and pulled her toward him in a sexual manner; and
9. on August 1, 2012, she was forced to retire on disability.
In its May 20, 2016 final decision, the Agency dismissed the formal complaint on the grounds of untimely EEO Counselor contact, pursuant to 29 C.F.R. � 1614.107(a)(2). The Agency determined that Complainant's initial EEO Counselor contact was on August 17, 2015, which it found to be well beyond the 45-day limitation period. The Agency further determined that Complainant was aware of the requisite 45-day limitation period because she attended the mandatory EEO related training courses which informed her of the 45-day limitation period for timely EEO Counselor contact.
In support of its assertions, the Agency submitted a copy of Complainant's training records from July 1992 to December 2008.
The record contains a copy of Complainant's training records for the period of July 1992 to December 2008. The record reflects that Complainant completed Diversity
Training for Employees (December 2007), Affirmative Employment Programs for Employees (December 2007), EEO Alternative Dispute Resolution (ADR) Program (December 2007), EEO Complaints Process Training for Employees, and Prevention of Sexual Harassment Training (September 2008), wherein she was notified of the 45-day limitation period.
The instant appeal followed. Complainant, on appeal, states "during the process of my claims, I was also seeking different medical attention due to my diagnosis of hernia, torn knee meniscus, and it was referred to a doctor for surgical attention. For the time of claims, I filed multiple complaints to EEO, followed through, and they were not responsive. Later after I am a little fully healed around July 16, 2015 I plead and requested a due process after all the events that have happened beginning of October 16, 2005 to prior on..."
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 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 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.
The Agency properly dismissed the formal complaint on the grounds of untimely EEO Counselor contact. The most recent alleged discriminatory event occurred on August 1, 2012. However, Complainant did not initiate contact with an EEO Counselor until August 17, 2015, well beyond the 45-day limitation period. Complainant had, or should have had, a reasonable suspicion of discrimination regarding her claims more than 45 days prior to her initial contact with an EEO Counselor. On appeal, Complainant did not present persuasive arguments or evidence warranting an extension of the time limit for initiating EEO Counselor contact. See 29 C.F.R. � 1614.604(c).
The Commission has consistently held that a Complainant must act with due diligence in the pursuit of her claim or the doctrine of laches may apply. See Becker v. U.S. Postal Service, EEOC Appeal No. 01A45028 (November 18, 2004) (finding that the doctrine of laches applied when Complainant waited over two years from the date of the alleged discriminatory events before contacting an EEO Counselor); O'Dell v. Department of Health and Human Services, EEOC Request No. 05901130 (December 27, 1990). The doctrine of laches is an equitable remedy under which an individual's failure to pursue diligently her course of action could bar her claim. In the instant matter, the most recent alleged discriminatory event occurred on August 1, 2012, but Complainant waited until August 2015, over three years later, to contact an EEO Counselor.
Moreover, a fair reading of the record reflects that Complainant asserts that despite her due diligence, she was prevented from pursing the EEO complaint process due to her medical conditions. When a complainant claims that a physical condition prevents her from meeting a particular filing deadline, we have held that in order to justify an untimely filing, the complainant must be so incapacitated by the condition as to render her physically unable to make a timely filing. See Zelmer v. USPS, EEOC Request No. 05890164 (March 8, 1989). The same is true regarding claims of incapacity related to psychiatric or psychological conditions. See Crear v. USPS, EEOC Request No. 05920700 (October 29, 1992). There is nothing in the record, such as medical documentation, supporting Complainant's assertion that she was so incapacitated during the applicable forty-five day period as to prevent him from timely initiating EEO Counselor contact. Complainant, therefore, has not presented any persuasive arguments or evidence warranting an extension of the time limit for initiating EEO Counselor contact. See 29 C.F.R. � 1614.604(c).
The Agency's final decision dismissing the formal complaint on the grounds of untimely EEO Counselor contact is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0416)
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. The requests 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 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.
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
September 1, 2016
__________________
Date
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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