0120171533
07-13-2017
Miguelina S.,1 Complainant, v. John F. Kelly, Secretary, Department of Homeland Security (Transportation Security Administration), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Miguelina S.,1
Complainant,
v.
John F. Kelly,
Secretary,
Department of Homeland Security
(Transportation Security Administration),
Agency.
Appeal No. 0120171533
Agency No. HS-TSA-26178-2016
DECISION
Complainant filed a timely appeal with this Commission from the Agency's decision dated February 14, 2017, dismissing her complaint of unlawful employment discrimination in violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq. Upon review, the Commission finds that Complainant's complaint was properly dismissed pursuant to 29 C.F.R. � 1614.107(a)(2), due to the untimely filing of the formal complaint.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Transportation Security Officer at the Agency's Austin Bergstrom International Airport facility in Austin, Texas, until her removal effective June 21, 2016.
Complainant contacted the EEO Counselor alleging discrimination. When the matter could not be resolved informally, Complainant was issued a Notice of Right to File a Formal Complaint (Notice) by email dated June 20, 2016. Complainant opened the email on June 27, 2016. Complainant was instructed that she was required to file the formal complaint within 15 calendar days of receipt of the email. Complainant asserted that she was not required to file the formal complaint until she opened the file which included the formal complaint. As such, she did not the file until she believed she was ready to work her complaint. Complainant received system reminders to prepare her formal complaint which Complainant acknowledged she saw. She indicated that she saw the email while preparing for a trip. On August 8, 2016, she opened the formal complaint file.
On August 17, 2016, Complainant filed a formal complaint alleging that the Agency subjected her to discrimination on the bases of disability and reprisal for prior protected EEO activity under Section 501 of the Rehabilitation Act of 1973 when:
1. On or around March 2016, management constantly called Complainant to make sure she turned in her two Fitness for Duty Questionnaires by a required due date;
2. On April 1, 2016, Complainant became aware that a similarly situated co-worker who was found unfit for duty was allowed one year to search for a new federal government job even though Complainant had only been allowed 15 days to search for a federal job.
3. On April 4, 2016, Complainant was removed from her daily duties as the checkpoint and reassigned to pushing bins all day;
4. On April 14, 2016, Complainant was issued a letter of proposed removal;
5. On or about April 14, 2016, Complainant learned that a Chief Medical Officer incorrectly gave a diagnosis that she had Idiopathic-Hyper Insomnia.
6. On or around September 2016, Complainant became aware that a similarly situated co-worker was offered two months of leave without pay to get better while Complainant was not given such an opportunity.
The Agency noted that Complainant was issued the Notice on June 20, 2016, which she opened on June 27, 2016. As such, the Agency found that Complainant's filing of her formal complaint on August 17, 2016, was well beyond the 15 day time limit.
ANALYSIS AND FINDINGS
The record discloses that Complainant received the notice of right to file a formal complaint on June 27, 2016. Although the notice indicated that Complainant had to file a formal complaint within fifteen (15) calendar days of its receipt, Complainant did not file her formal complaint until August 17, 2016, which is beyond the limitation period. On appeal, Complainant has not offered adequate justification to warrant an extension of the time limit for filing the complaint.
We have carefully considered Complainant's arguments on appeal, but do not find adequate justification has been presented to excuse her delay in filing her complaint. Based on Complainant's own account of the sequence of events, the email from the EEO Counselor gave her no reason to believe that the filing period had been extended. We note that Complainant had filed previous complaints, and was familiar with the complaint process. We therefore conclude that Complainant has not established that the Agency erred in dismissing her complaint as untimely filed.
In addition, Complainant has asserted on appeal that she was not ready to address the formal complaint when she received the Notice on June 27, 2016. We have consistently held, in cases involving physical or mental health difficulties, that an extension is warranted only where an individual is so incapacitated by her condition that she 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). Complainant has not shown that she herself was so incapacitated that she was unable to file her formal complaint within fifteen days. She has not presented adequate justification, pursuant to 29 C.F.R. � 1614.604(c) for extending the filing period. The Agency's decision to dismiss the complaint as untimely filed was proper
CONCLUSION
Accordingly, the Agency's final decision dismissing Complainant's complaint is affirmed.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0617)
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. A party shall have twenty (20) calendar days of receipt of another party's timely request for reconsideration in 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). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission. Complainant's request 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 agency's request must be submitted in digital format via the EEOC's Federal Sector EEO Portal (FedSEP). See 29 C.F.R. � 1614.403(g). 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
July 13, 2017
__________________
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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