[Redacted], Gretchen M., 1 Complainant,v.Kilolo Kijakazi, Acting Commissioner, Social Security Administration, Agency.

Equal Employment Opportunity Commission

Jan 27, 2022

Appeal No. 2022000208 (E.E.O.C. Jan. 27, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Gretchen M.,1 Complainant, v. Kilolo Kijakazi, Acting Commissioner, Social Security Administration, Agency. Appeal No. 2022000208 Agency No. SF-21-0469-SSA DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's decision dated September 20, 2021, dismissing her complaint alleging 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. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Claims Specialist, GS-11, at the Agency’s Field Office facility in Flagstaff, Arizona. On September 7, 2021, Complainant filed a formal complaint alleging that the Agency subjected her to discrimination on the basis of disability. Specifically, she raised the issues of: 1. Whether the Agency subjected Complainant to disparate treatment based on disability when management denied her requests for Family Medical and Leave Act (FMLA) leave from January 7, 2021, through April 30, 2021. 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. 2022000208 2 2. Whether the Agency subjected Complainant to disparate treatment based on disability when management denied her requests for advanced sick leave from January 7, 2021, through April 30, 2021. 3. Whether the Agency subjected Complainant to disparate treatment based on disability when management denied her requests for advanced annual leave from January 7, 2021, through April 30, 2021. 4. Whether the Agency subjected Complainant to disparate treatment based on disability when management placed her on Leave Without Pay (LWOP) from January 7, 2021, to April 30, 2021. 5. Whether the Agency subjected Complainant to disparate treatment based on disability when management charged her absences to annual leave from January 7, 2021, to April 30, 2021. 6. Whether the Agency subjected Complainant to harassment (non-sexual) based on disability, from January 7, 2021 to April 30, 2021, regarding denied leave requests, comments pressuring her regarding disability retirement, and forced retirement. 7. Whether the Agency subjected Complainant to disparate treatment based on disability when on May 3, 2021, management forced her to retire from Federal Service, as a GS- 105-11, Claims Specialist. The Agency’s Office of Civil Rights & Equal Opportunity bifurcated Claim 7 as a mixed case with appeal rights to the Merit Systems Protection Board (Agency No. SF-21-0582-SSA), separating Claim 7 from this appeal. However, the Agency also dismissed Claims 1-7 pursuant to 29 C.F.R. § 1614.107(a)(2) for failure to timely contact an EEO Counselor in compliance with the applicable time limits contained in 1614.105(a) (1). Complainant filed the instant appeal. She did not file a brief in support of her appeal. The Agency contends on appeal that Complainant has provided no evidence to suggest that there were circumstances beyond her control preventing her from contacting an EEO Counselor in a timely manner, and therefore, the Agency acted appropriately in dismissing the entire complaint for untimely counselor contact. 2022000208 3 ANALYSIS AND FINDINGS Claim 7 We find the Agency properly treated this as a mixed case complaint and bifurcated Claim 7. A mixed case complaint is a complaint of employment discrimination filed with a federal agency, related to or stemming from an action that can be appealed to the Merit Systems Protection Board (“MSPB”). See 29 C.F.R. § 1614.302(a)(1). When a complaint contains both appealable and non-appealable matters, the non-appealable issues should be processed separately from issues appealable to the MSPB. See Lethridge v. U.S. Postal Serv., EEOC Appeal No. 07A40076 (Nov. 29, 2004), req. for recon. denied, EEOC Request No. 05A50399 (Feb. 9, 2005) (citing Caldwell v. Office of Pers. Mgmt., EEOC Request No. 05910649 (Sep. 6, 1991)). Further, “because the MSPB does not have jurisdiction to hear non-appealable matters, complaints not containing those matters should be processed by the agency under the 1614 process and not mixed with matters that are appealable to the MSPB through amendment, consolidation or held in abeyance.” Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 4 § II.B (Aug. 5, 2015). In the instant case, we find that the Commission does not have jurisdiction to address Claim 7 because the Agency correctly issued a FAD on the claim and provided Complainant with appeal rights to the MSPB for that allegation. See 29 C.F.R. § 1614.302(d)(3) (“At the time that the agency issues its final decision on a mixed case complaint, the agency shall advise the complainant of the right to appeal the matter to the MSPB (not EEOC) within 30 days of receipt and of the right to file a civil action as provided at § 1614.310(a)”). Claims 1-6 EEOC Regulation 29 C.F.R. § 1614.105(a)(1) provides that an aggrieved person must initiate contact with an 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. EEOC Regulation 29 C.F.R. § 1614.107(a)(2) provides for the dismissal of complaints where the complainant did not initiate contact with an EEO Counselor within 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. 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 (February 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. Here, it is undisputed that Complainant initiated EEO Counselor contact on June 29, 2021. The alleged discriminatory events in these claims occurred between January 7, 2021 and April 30, 2021. Thus, even the most recent events are outside the 45-day period proscribed by 29 C.F.R. § 1614.105(a)(1). 2022000208 4 Complainant stated in her formal complaint that her district manager began suggesting disability retirement to Complainant and mentioning how it would affect her ability to repay advance leave as early as January 11, 2021. Thus, she reasonably should have suspected discrimination based on disability beginning at that time. EEOC Regulation 29 C.F.R. §1614.105(a)(2) allows the Agency or the Commission to extend the time limit if Complainant can establish that Complainant was not aware of the time limit, that Complainant 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 time limit, or for other reasons considered sufficient by the Agency or Commission. Complainant has presented no such argument here. Therefore, we find the Agency properly dismissed Claims 1-6. CONCLUSION Accordingly, the Agency's final decision dismissing Claims 1-6 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. 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. 2022000208 5 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. The court has the sole discretion to grant or deny these types of requests. 2022000208 6 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 January 27, 2022 Date