Cheryll K,1 Complainant,v.Tom J. Vilsack, Secretary, Department of Agriculture, Agency.

Equal Employment Opportunity Commission

Mar 9, 2017

0120152132 (E.E.O.C. Mar. 9, 2017)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

Cheryll K,1
Complainant,

v.

Tom J. Vilsack,
Secretary,
Department of Agriculture,
Agency.

Appeal No. 0120152132

Agency No. RMA201100482

DECISION

Complainant filed an appeal with this Commission from the Agency’s decision dated April 28,
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. and the
Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et
seq. 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 Counselor contact.

At the time of events giving rise to this complaint, Complainant worked as an Information
Technology Specialist at the Agency’s facility in Kansas City, Missouri. On July 5, 2011,
Complainant filed a formal complaint alleging that the Agency subjected her to discrimination
on the bases of her race (African-American) and disability when:

1. In late 2001 or early 2002, management denied her request for a reasonable
accommodation to extend the time of the Medical Flexiplace Program, which
would have allowed her to continue working from home; and

2. In February 2002, as a result of the aforementioned denial, she was forced to
take medical retirement.

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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In its decision the Agency found that Complainant’s EEO Counselor contact was untimely
because she exceeded the 45-day time limit between the alleged discriminatory acts and
initiating contact with an EEO Counselor. In the alternative, the FAD considered the merits of
the instant complaint and found that no discrimination occurred.

On appeal, Complainant argues that she did not learn of evidence of discrimination, in the
form of similarly situated coworkers, until 2011, and timely contacted an EEO Counselor
within 45 days of obtaining this information.

In relevant part, 29 C.F.R. § 1614.107(a)(2) provides that an agency shall dismiss a complaint
or a portion of a complaint that fails to comply with the applicable time limits contained in
§1614.105. 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 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 record discloses that the alleged discriminatory event occurred, at the latest, when
Complainant retired from her position on March 7, 2002, but Complainant did not initiate
contact with an EEO Counselor until March 3, 2011. The Commission finds that
Complainant’s argument that she did not know or reasonably could not have known about the
alleged discriminatory conduct until 2011, is not persuasive. The Commission has adopted a
“reasonable suspicion” standard (as opposed to a “supportive facts” standard) to determine
when the 45-day limitation period is triggered. See Complainant v. Dep’t of the Navy, EEOC
Request No. 05970852 (February 11, 1999). Thus, the time limitation was triggered when the
facts necessary to support a reasonable suspicion of discrimination were known to Complainant
and not when Complainant established evidence of discrimination.

The facts necessary for Complainant to reasonably suspect discrimination were known to
Complainant, at the very latest, on March 7, 2002, when she retired from her position. That is
the event that triggered the 45-day time limit, which had long expired by the time Complainant
learned about purportedly similarly situated coworkers in 2011. The Commission finds that
Complainant’s complaint is untimely for failure to contact an EEO Counselor within 45 days of
March 7, 2002.

Furthermore, we find that the complaint is barred by the doctrine of laches. The Commission
has consistently held that a complainant must act with due diligence in the pursuit of her claim
or the doctrine of laches may apply. See Complainant v. U.S. Postal Serv., EEOC Appeal No.
01A45028 (November 18, 2004) (finding that the doctrine of laches applied when complainant
waited over two years from the date of the alleged discriminatory events before contacting an
EEO Counselor). In the instant case, Complainant did not contact an EEO Counselor until
approximately nine years after the alleged discriminatory act and her complaint is therefore
barred by the doctrine of laches.

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Because the Commission finds that Complainant’s complaint is properly dismissed for untimely
EEO Counselor contact, we decline to consider the merits of the complaint.

CONCLUSION

Accordingly, the Agency's 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.
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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

March 9, 2017
Date