EEOC Appeal No. 0120161131
05-03-2016
Soloman B. v. Soc. Sec. Admin.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Solomon B.,1
Complainant,
v.
Carolyn W. Colvin,
Acting Commissioner,
Social Security Administration,
Agency.
Appeal No. 0120161131
Agency No. KC-15-1004-SSA
DECISION
Complainant filed a timely appeal with this Commission from the Agency's final decision dated January 20, 2016, dismissing a formal 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.
BACKGROUND
In June 2014, Complainant, who was working for the Agency as a Benefits Authorizer, applied for and was selected for a Claims Authorizer position at the Workload Support Unit, Mid-America Program Service Center (MAMPSC) in Kansas City, Kansas. He began his new position on July 15, 2014.
On August 27, 2015, Complainant initiated EEO Counselor contact. Informal efforts to resolve his concerns were unsuccessful.
On November 17, 2015, Complainant filed a formal EEO complaint claiming he was subjected to harassment/a hostile work environment on the basis of disability beginning in November 2014 and continuing until he was forced to request to return to his prior Benefits Authorizer position. He resumed his Benefits Authorizer position on June 1, 2015.
In its January 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 27, 2015, which it found to be well beyond the 45-day limitation period from the most recent event of alleged harassment.
The instant appeal followed.
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 alleged discriminatory event occurred beginning in November 2014 through Complainant's return to his former position effective June 1, 2015. However, Complainant did not initiate contact with an EEO Counselor until August 27, 2015, well beyond the 45-day limitation period.
On appeal, Complainant argues that he had no actual or constructive knowledge of the limitation period for contacting an EEO counselor. Complainant also asserts that he was "working with management and union officials during this time...my filing only happened when management and union officials had already caused lengthy delays in responding to my concerns and queries. Only when I contacted an EEO Counselor was I informed of the limited time period in which to file."
In response, the Agency submitted two declarations stating that Complainant was aware of the requisite 45-day limitation period. The former Technical Training Manager's declaration dated March 16, 2016, stated that he provided all Benefits Authorizers, including Complainant, by email an annual policy statement for the prevention of harassment in the workplace which stated, in pertinent part: '[U]nder 29 C.F.R. � 1614.105, an aggrieved employee must contact an EEO counselor within 45 days of the date of the allegedly discriminatory action. Failure to contact an EEO counselor within the allotted time period can result in a finding that the claim is stale and not actionable."
The CREO Manager's declaration dated March 14, 2016. Therein, the Manager stated that during the relevant period the EEO posters were "[posted throughout the Mid-America Program Service Center (MAMPSC), including in the canteen area on the 14th floor of the Richard Bolling Federal Building, where Complainant's workstation is located. These notices include specific information about the 45-day time limit for initiating contact with an EEO counselor. These notices have been posted throughout the MAMPSC at least since the time I became CREO Manager in June 2015." The CREO Manager submitted a copy of the EEO notice outlining the requisite 45-day limitation period.
Based on these declarations, we find that the record has established that Complainant had at least constructive notice of the limitation period for seeking EEO counseling.
Furthermore, to the extent Complainant is asserting that he was pursuing other avenues of redress before seeking EEO counseling, the Commission has consistently held that use of internal agency procedures, such as union grievances, and other remedial processes does not toll the time limit for contacting an EEO Counselor. See Kramer v. United States Postal Service, EEOC Appeal No. 01954021 (October 5, 1995); Williams v. United States Postal Service, EEOC Request No. 05910291 (April 25, 1991); Ellis v. United States Postal Service, EEOC Request No. 01992093 (November 29, 2000).
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). Accordingly, the Agency properly dismissed the instant complaint for untimely EEO Counselor contact.
The Agency's final decision dismissing the formal complaint for the reason stated herein 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. Hadden's signature
Carlton M. Hadden, Director
Office of Federal Operations
May 3, 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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