Goldie S.,1 Complainant,v.Dr. Heather A. Wilson, Secretary, Department of the Air Force, Agency.

Equal Employment Opportunity Commission

Sep 30, 2019

2019004348 (E.E.O.C. Sep. 30, 2019)

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

Goldie S.,1
Complainant,

v.

Dr. Heather A. Wilson,
Secretary,
Department of the Air Force,
Agency.

Appeal No. 2019004348

Agency No. 8Z0J1900362

DECISION

Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC
or Commission) from the Agency's final decision dated May 7, 2019, dismissing a formal
complaint of unlawful employment discrimination in violation of the Age Discrimination in
Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq.

BACKGROUND

During the period at issue, Complainant worked as a Contract Specialist, GS-12, at the Agency’s
Air Force Installation Contracting Agency at the Agency’s Joint Base located in San Antonio,
Texas.

On February 21, 2019, Complainant initiated EEO Counselor contact. Informal efforts to resolve
her concerns were unsuccessful.

On April 19, 2019, Complainant filed a formal EEO complaint claiming that the Agency
discriminated against and subjected her to discriminatory harassment based on disability when:

1. on January 17, 2018, Complainant was charged Absent Without Leave
(“AWOL”);

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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2. on December 5, 2017, Complainant was charged AWOL;

3. on December 4, 2017, Complainant was charged AWOL; and

4. on or about October 2017, Complainant’s First Level Supervisor stated to
Complainant “you take too much time off for medical leave.”2

In its final decision dated May 7, 2019, the Agency dismissed the formal complaint for untimely
EEO Counselor contact, pursuant to 29 C.F.R. § 1614.107(a)(2). The Agency found that
Complainant’s initial EEO Counselor contact was on February 21, 2019, which it found to
beyond the 45-day limitation period.

The instant appeal followed. On appeal, Complainant argues that the diagnoses of diabetes,
pulmonary fibrosis, and spinal stenosis prevented her from timely initiating contact with an EEO
Counselor. Specifically, Complainant states that she is “requesting an appeal for 2017 and 2018
for discrimination, retaliation, and harassment due to a missed deadline caused by medical illness
and testing throughout 2018.” Complainant explains that she was never informed or given the
option for a conference call to handle her request and therefore she submitted her request in
February 2019.

ANALYSIS AND FINDINGS

The Agency properly dismissed Complainant’s complaint for untimely EEO Counselor contact.
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. Dep’t of the Navy, EEOC
Request No. 05970852 (Feb. 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, the last alleged incident occurred on January 17, 2018. The record, however, reflects that
Complainant did not initiate contact with an EEO Counselor until February 21, 2019,
approximately one year and one month after the alleged incident occurred. Additionally,
Complainant’s argument that her medical diagnoses delayed her ability to timely contact an EEO
Counselor is unpersuasive.

2 We note that Complainant included alleged incidents occurring in April and March 2019 that
Complainant did not include during the pre-complaint process. The Agency did not address
these claims in its final decision, on appeal Complainant does not expressly address the
Agency’s determination not to address these matters, and we will not address them further in our
decision.
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The Commission has consistently held, in cases involving physical or mental health difficulties,
that an extension is warranted only where an individual is so incapacitated by his condition that
he is unable to meet the regulatory time limits. In Weinberger v. Dep’t of the Army, EEOC
Request No. 05920040 (Feb. 21, 1992), the Commission held that when a complainant claims
that a physical condition prevented him or her from meeting a particular deadline, the
complainant must be so incapacitated by the condition as to render him or her unable to make a
timely filing. However, there is nothing in the record, such as medical documentation,
supporting that Complainant was so incapacitated that she was prevented from contacting the
EEO Counselor within 45 days of the last alleged incident. Therefore, Complainant has not
provided adequate justification for extending the limitation period beyond 45 days.

The Agency’s final decision dismissing the formal complaint for untimely EEO Counselor
contact is AFFIRMED.

STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0617)

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. A party
shall have twenty (20) calendar days of receipt of another party’s timely request for
reconsideration in 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). All requests and arguments must be submitted to the
Director, Office of Federal Operations, Equal Employment Opportunity Commission.
Complainant’s request 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
agency’s request must be submitted in digital format via the EEOC’s Federal Sector EEO Portal
(FedSEP). See 29 C.F.R. § 1614.403(g). The request or opposition must also include proof of
service on the other party.

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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

September 30, 2019
Date