0120161567
06-21-2016
Terrell G.,1 Complainant, v. Jacob J. Lew, Secretary, Department of the Treasury (Internal Revenue Service Office of Chief Counsel), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Terrell G.,1
Complainant,
v.
Jacob J. Lew,
Secretary,
Department of the Treasury
(Internal Revenue Service Office of Chief Counsel),
Agency.
Appeal No. 0120161567
Agency No. IRSCC-16-0167-F
DECISION
Complainant filed a timely appeal with this Commission from the Agency's decision dated March 22, 2016, dismissing his 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.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Legal Assistant Student Trainee at the Agency's Office of Chief Counsel facility in New York, New York.
The EEO counseling report in this matter indicates that Complainant alleged that on October 22, 2014, he reported an incident of sexual harassment by the Office Manager to the Area Manager. On April 6, 2015, Complainant received an email from the Area Manager that his last day of employment as an intern would be May 30, 2015. A few days later, Complainant received official notice of the termination of his student internship, effective May 30, 2015,2 as he was scheduled to graduate at that time. After receiving his termination notice, the EEO counseling report stated that Complainant said that he made it known that he was going to report another incident of sexual harassment that he had witnessed between two coworkers.
On December 28, 2015, Complainant initiated contact with an EEO counselor regarding his termination. The EEO counselor asked Complainant why he waited from May 2015 to December 2015 to contact the EEO Office. Complainant informed the EEO counselor that he feared retaliation from management if he filed an EEO complaint. He also stated that he was hoping "to possibly be kept for a permanent position." In response to a question from the EEO counselor, Complainant stated that he had received training on his EEO rights during his employment.
On March 1, 2016, Complainant filed a formal complaint alleging that the Agency subjected him to discrimination on the basis of sex (male) and reprisal (for providing information regarding sexual harassment) when, effective May 30, 2015, he was terminated.
The Agency dismissed the complaint pursuant to 29 C.F.R. � 1614.107(a)(2) for untimely EEO Counselor contact. The Agency noted that Complainant was terminated from his internship effective May 30, 2015. However, he did not contact an EEO counselor until December 28, 2015, well beyond the 45-day time limit, despite his admitted awareness of the EEO complaint process.
The instant appeal from Complainant followed.
ANALYSIS AND FINDINGS
EEOC Regulations 29 C.F.R. � 1614.105(a)(1) requires that complaints of discrimination 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 45 days of the effective date of the action. See 29 C.F.R. � 1614.107(a)(2).
Here, Complainant asked that any delay in seeking EEO counseling be excused because he feared retaliation from the Agency. The Commission has repeatedly held that, in general, fear of reprisal is an insufficient justification for extending the time limitation for contacting an EEO Counselor. See Parker v. Dep't. of Veterans Affairs, EEOC Request No. 05940436 (Feb. 9, 1995). However, an extension may be justified where Complainant's fear of reprisal is based on "severe intimidation," such as a supervisor's threat to fire an employee if he files a complaint. Duncan v. Dep't. of Veterans Affairs, EEOC Request No. 05970315 (July 10, 1998. In the present case, Complainant was no longer working for the Agency as of May 30, 2015, and has not provided any concrete reason for why he waited six months to contact an EEO counselor after he left the Agency's employment. Based on our review, we find that Complainant has not established that the time period should be tolled due to fear of retaliation.
Complainant also argued that he made the EEO office aware of alleged harassment when he was contacted by the EEO office in April 2015 as a potential witness in another employee's complaint. However, while Complainant may have spoken with the EEO office as a potential witness for another employee, he has not established that, at that time, he communicated an intent to begin the EEO process in his own matter. See Cox v. Dep't. of Housing and Urban Develop., EEOC Request No. 05980083 (July 30, 1998); Allen v. U.S. Postal Serv., EEOC Request No. 05950933 (July 9, 1996). Therefore, we find that Complainant has not shown that he made contact with an EEO counselor at an earlier date than December 2015, regarding the Agency's termination action.
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 contact. Accordingly, the agency's final decision dismissing complainant's complaint 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
June 21, 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.
2 There is some confusion in the record about whether or not the notice was rescinded at some point. Nevertheless, Complainant's employment ended on May 30, 2015.
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