Complainant,v.Carolyn W. Colvin, Acting Commissioner, Social Security Administration, Agency.

Equal Employment Opportunity Commission

May 28, 2015

01-2013-3227-0500 (E.E.O.C. May. 28, 2015)

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

,
Complainant,

v.

Carolyn W. Colvin,
Acting Commissioner,
Social Security Administration,
Agency.

Appeal No. 0120133227

Agency No. ATL-13-0493-SSA

DECISION
Complainant filed an appeal with this Commission from the Agency's decision dated July 26,
2013, 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. For the following reasons, the Commission AFFIRMS the Agency’s final decision.

BACKGROUND
On April 8, 2013, Complainant initiated EEO Counselor contact. Informal efforts to resolve
her concerns were unsuccessful.

On May 15, 2013, Complainant filed a formal complaint alleging that the Agency subjected
her to discrimination on the basis of disability when she was denied a reasonable
accommodation.

The Agency dismissed Complainant’s complaint pursuant to 29 C.F.R. § 1614.107(a)(2), on
the grounds of untimely EEO Counselor contact. Specifically, the Agency determined that
Complainant initiated EEO Counselor contact on April 8, 2013, which it found to be more than
forty-five days after the alleged discriminatory event occurred. The Agency noted that
Complainant alleged that on February 15, 2013, she was not granted a particular reasonable
accommodation she requested in December 2012. The Agency also noted that Complainant
claimed that on January 4, 2012, she received a letter denying a particular accommodation
requested in an October 2011 reasonable accommodation request. In addition, the Agency
noted Complainant claimed that on October 18, 2012, she received a letter denying a particular
accommodation requested in a January 2012 reasonable accommodation request. Moreover,
the Agency noted Complainant also stated that on December 13, 2012, she received a letter
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denying the particular accommodation requested in her January 2012 reasonable
accommodation request.

The Agency noted Complainant informed the EEO Counselor that she did not contact the
counselor in a timely fashion because she was unaware of the 45-day requirement. The
Agency determined Complainant had either actual or constructive notice of the requirement
from: No-Fear Act training completed on December 19, 2012; a January 4, 2012 letter
addressing Complainant’s October 21, 2011 reasonable accommodation request; and an EEOC
poster containing the 45-day filing requirement prominently displayed at Complainant’s work
site which the Agency stated was on display at the time of the incident. The Agency
determined Complainant did not show that the 45-day time frame should be extended.

On appeal, Complainant stated that she did not understand the process. Moreover,
Complainant stated that due to her “illness” and ongoing reasonable accommodation requests,
she waited on the Agency to make a decision.

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
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. Department 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.
EEOC Regulations provide that the agency or the Commission shall extend the time limits
when the individual shows that she was not notified of the time limits and was not otherwise
aware of them, that she did not know and reasonably should not have known that the
discriminatory matter or personnel action occurred, that despite due diligence she was
prevented by circumstances beyond her control from contacting the Counselor within the time
limits, or for other reasons considered sufficient by the agency or the Commission.

The record discloses that the alleged discriminatory events occurred at the latest on February
15, 2013, but that Complainant did not initiate contact with an EEO Counselor until April 8,
2013, which is beyond the forty-five-day limitation period. We note the record contains a
January 4, 2012 letter denying Complainant’s request for reassignment as a reasonable
accommodation. The letter explained the 45-day requirement for Complainant to contact an
EEO Counselor. Thus, we find Complainant had actual knowledge of the time frame for
initiating an EEO complaint. Although Complainant claimed she was “ill” we find
Complainant failed to present sufficient evidence to establish that she was so incapacitated to
prevent her from pursuing the EEO process. Upon review, we find that Complainant has
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presented no persuasive arguments or evidence warranting an extension of the time limit for
initiating EEO Counselor contact.

CONCLUSION
Accordingly, the Agency’s decision dismissing Complainant’s complaint is AFFIRMED.

STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION

(M0610)
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 9-18 (November 9, 1999). 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”
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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

(Z0610)
If you decide to file a civil action, and if you do not have or cannot afford the services of an
attorney, you may request from the Court that the Court appoint an attorney to represent you
and that the Court also permit you to file the action without payment of fees, costs, or other
security. See Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et
seq.; the Rehabilitation Act of 1973, as amended, 29 U.S.C. §§ 791, 794(c). The grant or
denial of the request is within the sole discretion of the Court. Filing a request for an attorney
with the Court does not extend your time in which to file a civil action. Both the request and
the civil action must be filed within the time limits as stated in the paragraph above (“Right to
File a Civil Action”).

FOR THE COMMISSION:

______________________________
Carlton M. Hadden, Director
Office of Federal Operations

Date
May 28, 2015