0120160792
03-10-2016
Giselle T.,1 Complainant, v. Jacob J. Lew, Secretary, Department of the Treasury (Internal Revenue Service), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Giselle T.,1
Complainant,
v.
Jacob J. Lew,
Secretary,
Department of the Treasury
(Internal Revenue Service),
Agency.
Appeal No. 0120160792
Agency No. IRS151593F
DECISION
Complainant timely appealed to this Commission from the Agency's decision dated November 13, 2015, dismissing her 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 Customer Service Representative (GS-8) for Accounts Management in the Agency's Wage and Investment Division (W&I), in St. Louis, Missouri.
On October 22, 2015, Complainant filed a formal complaint alleging that the Agency subjected her to discrimination on the basis of reprisal for prior protected EEO activity (Agency No. IRS-12-0204-F, EEOC Appeal No. 0120132563 (Aug. 11, 2015)) when:
1. On November 15, 2014, management gave her a "Not Ratable" rating on her 2014 annual performance appraisal;
2. Between January 26, 2015 to February 9, 2015, management suspended Complainant; and
3. On or about April 13, 2015, management denied her a Quality Step Increase (QSI).
The Agency dismissed the complaint pursuant to 29 C.F.R. � 1614.107(a)(2), for untimely EEO Counselor contact. The Agency also dismissed Claim 3 on alternate grounds pursuant to 29 C.F.R. � 1614.107(a)(4).
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 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. The alleged discriminatory events were all personnel actions with identifiable effective dates. Complainant needed to bring her claims to the attention of an EEO Counselor no later than December 29, 2014 for Claim 1, March 12, 2015 for Claim 2, and May 28, 2015 for Claim 3. Complainant did not contact her EEO Counselor until August 25, 2015.
EEOC Regulation 29 C.F.R. �1614.105(a)(2) allows the agency or the Commission to extend the time limit if the complainant can establish that he or she was not aware of the time limit; 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 lime limit, or for other reasons considered sufficient by the agency or Commission. Complainant does not articulate a reason for the untimely contact in her formal complaint, however the Agency states in its final decision that Complainant attributed the delay to being unaware of the forty-five (45) day time limitation and stress.
The Commission has consistently held that a complainant who has engaged in prior EEO activity is deemed aware of the time frames required for filing complaints in the EEO procedure. See Coffey v. Dep't. of the Navy, EEOC Request No. 05901006 (Nov. 16, 1990); see also Kader v. United States Postal Serv., EEOC Request No. 05980473 (June 24, 1999) Moreover, while her EEO complaint was pending with this Commission, Complainant received letters on October 21, 2014 and January 21, 2015 from the Agency that included the following language with regard to Claim 1:
Should you allege that the action taken against you was based in whole or in part on discrimination pursuant to 29 C.F.R. 1614.103, you... have the right to file a complaint with the Equal Employment Opportunity (EEO) Commission consistent with 29 C.F.R. 1614... To appeal under 29 C.F.R. 1614, the allegation must be brought to the attention of an EEO counselor within 45 days of the effective date of this action [Complainant's suspension became effective January 26, 2015]... Information about appeal rights and procedures may be obtained from your EEO counselor.
As for Complainant's claim that stress prevented her from timely contacting an EEO Counselor; under 29 C.F.R. � 1614.604(c), to justify an untimely filing due to health, a complainant must be so incapacitated by the condition as to render her physically unable to make a timely filing. See Zelmer v. United States Postal Serv., EEOC Request No. 05890164 (March 8, 1989). Complainant has not provided any evidence or statements to support a finding that the stress caused her to be so incapacitated throughout the applicable period as to prevent her from timely contacting an EEO Counselor.
On appeal, Complainant alleges she did not realize that the above claims could constitute retaliation until August 13, 2015, when she received our decision on EEOC Appeal No. 0120132563 (reversing the Agency's finding of no discrimination in IRS-12-0204-F); which included paperwork (not found in the record) describing retaliation. Given that Complainant had a pending EEO complaint before this Commission when each of the above alleged discriminatory acts occurred, and Complainant's imputed EEO knowledge discussed above, we find this explanation insufficient to warrant an extension.
Finally, the Agency's alternate dismissal for Claim 3 was proper, but we find further analysis unnecessary as all three claims may be dismissed for untimely EEO Counselor contact.
CONCLUSION
Accordingly, the Agency's final decision dismissing Complainant's complaint is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0815)
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, P.O. Box 77960, Washington, DC 20013. 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 signature
Carlton M. Hadden, Director
Office of Federal Operations
March 10, 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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