EEOC Appeal No. 0120132779
09-04-2015
Complainant v. Dep't of Justice
Complainant,
v.
Loretta E. Lynch,
Attorney General,
Department of Justice
(Federal Bureau of Investigation),
Agency.
Appeal No. 0120132779
Agency No. FBI-2011-00279
DECISION
Complainant filed a timely appeal with this Commission from the Agency's final decision dated July 16, 2013, 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
During the period at issue, Complainant worked as a GS-13 Language Specialist in the New York City Field Office of the Federal Bureau of Investigation.
On September 13, 2011, Complainant initiated EEO Counselor contact. Informal efforts to resolve her concerns were unsuccessful.
The record reflects that Complainant was diagnosed with carpel tunnel syndrome in 2006, due to repetitive motions involved in the performance of her duties. Complainant had surgery on her right hand on July 19, 2007, and did not return to work until July 16, 2008. On August 4, 2008, she provided Agency management with a medical status report from her doctor stating that she should avoid high force/high repetition activities, as well as avoid exposure to cold or prolonged vibration.
On October 21, 2011, Complainant filed the instant formal complaint. Therein, Complainant claimed that the Agency subjected her to discrimination on the basis of disability when her requests for reasonable accommodation in 2009 were denied or not acted upon.
Complainant stated that on April 3, 2009, she submitted a request for reasonable accommodation to the FBI's OEEOA section, in which she requested to be reassigned from New York to the Allentown Resident Agency of the Philadelphia Division.1 On June 17, 2009, the OEEOA requested additional medical documentation to explain Complainant's diagnosis, prognosis, and other information to determine her eligibility for reasonable accommodation under the Rehabilitation Act. Complainant stated that she submitted the additional medical information on July 27, 2009, and the information was forwarded to the FBI Medical Officer for review. The Medical Officer did not recommend granting Complainant's request for reasonable accommodation. On August 31, 2009, the OEEOA notified Complainant by certified mail that the additional documentation she submitted did not show that Complainant was a qualified individual with disability, and that she was not eligible for reasonable accommodation. Complainant asserted that she had never received the August 31, 2009 letter, but the record reflects that she subsequently became aware of the reasonable accommodation denial by December 2009.
The record reflects that Complainant claimed that she also made a verbal request for a second type of reasonable accommodation in April 2009. This request was not related to a location reassignment from New York, but instead related to a workload reduction, specifically typing. Complainant asserted that this request was not acted upon. However, by no later than the time she left for a second surgery in February 2010, Complainant admitted that her supervisors had informed her that her workload could not be reduced due to the needs of the FBI's mission in New York. There is no indication that Complainant made any other accommodation request subsequent to her February 2010 surgery.
Following an investigation of the subject claim, Complainant requested a hearing before an Administrative Judge (AJ). Thereafter, Complainant filed a Motion for Summary Judgment and the Agency countered with a Motion to Dismiss.
On April 1 and April 3, 2013, the AJ held a preliminary hearing with regard to both motions. In its motion, the Agency argued that Complainant's initial EEO counselor contact was not timely raised. During the preliminary hearing, the AJ informed Complainant that he was "looking at a situation here it where it would be unconscionable for me to continue to spend Commission time and energy on a case that appears on its face to be overwhelmingly untimely." The AJ indicated that he intended to remand the case to the Agency for continued processing in accordance with its Motion.
On April 22, 2013, the AJ issued a document identified as "Hearing Dismissal & Remand." Therein, the AJ stated that Complainant's hearing request was dismissed and that the matter was remanded to the Agency "for further administrative processing in accordance with 29 C.F.R. � 1614.105(a)(1)."
On July 16, 2013, pursuant to the AJ's decision, the Agency issued its final decision. In that 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 noted that the alleged discriminatory matters raised in the instant formal complaint all occurred in 2009. First, the Agency found that it had sent Complainant a letter by certified mail on August 31, 2009, denying her request for reasonable accommodation (reassignment). The Agency acknowledged that Complainant asserted that she did not receive the Agency's August 31, 2009 letter. The Agency nevertheless determined that Complainant was issued another denial of this accommodation request on December 11, 2009, which Complainant received. The Agency noted that Complainant admitted to delay in seeking counseling during the preliminary hearing before the AJ, but stated that any delay was attributable to pain from her medical condition and her focus on physical therapy.
The instant appeal followed.
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R. �1614.107(a)(2) requires that complaints of discrimination should be brought to the attention of the Equal Employment Opportunity Counselor within forty-five (45) calendar days of an alleged discriminatory event, the effective date of an alleged discriminatory personnel action, or the date that the aggrieved person knew or reasonably should have known of the discriminatory event or personnel action.
The record discloses that the alleged discriminatory events occurred mainly in 2009, and no later than February 2010, but that Complainant did not initiate contact with an EEO counselor until September 13, 2011, which is well beyond the forty-five (45) day limitation period.
During the preliminary hearing and on appeal, Complainant offers two explanations for her delay in seeking EEO counseling. First, she asserts she was not familiar with the EEO complaint process and did not know the time limits for seeking EEO counseling. As the Agency has not produced affirmative evidence countering these assertions, we would likely excuse some delay in this case. However, the record shows that Complainant failed to seek EEO counseling for, at best, 19 months, and more likely more than two years. Under these circumstances, we find Complainant's 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, e.g., Becker v. United States Postal Service, EEOC Appeal No. 01A45028 (November 18, 2004) (finding that the doctrine of laches applied when complainant waited approximately two years from the date of the alleged discriminatory events before contacting an EEO counselor). The doctrine of laches is an equitable remedy under which an individual's failure to pursue diligently her course of action bars her claim.
Complainant also argued that the delay should be excused because she was in pain due to her medical condition and was focused on her physical therapy. In cases involving physical or mental health difficulties, the Commission has held 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. United States Postal Service, EEOC Request No. 05980475 (August 6, 1998); Crear v. United States Postal Service, EEOC Request No. 05920700 (October 29, 1992). In the instant case, although we are sympathetic to the difficulties experienced by Complainant during the time period which she was required to timely seek EEO counseling, Complainant has failed to demonstrate that she was so incapacitated that the time limits should be waived in this case. Again, while we might have excused some delay, in this case the delay was of almost two years.
CONCLUSION
For the reasons set forth above, the Agency's final decision dismissing the complaint in this matter for untimely EEO counselor contact 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 tends 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" 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 Complainants 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
September 4, 2015
__________________
Date
1 Complainant claimed the commute to New York aggravated her carpal tunnel because the bus vibrated significantly.
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0120132779
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120151609
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0120132779