0120141873
10-08-2014
Complainant, v. Jacob J. Lew, Secretary, Department of the Treasury (Internal Revenue Service), Agency.
Complainant,
v.
Jacob J. Lew,
Secretary,
Department of the Treasury
(Internal Revenue Service),
Agency.
Appeal No. 0120141873
Agency No. IRS120764F
DECISION
Complainant filed a timely1 appeal with this Commission from the Agency's decision (Dismissal) dated March 13, 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.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Contact Representative at the Agency's Wage and Investment Division in Dallas, Texas.
On January 10, 2013, Complainant filed a formal complaint alleging that the Agency subjected her to discrimination on the basis of disability (unspecified physical injury) when:
1. on or about February 24, 2012, Complainant was denied a change to her tour of duty;
2. on or about April 18, 2012, Complainant was charged with being Absent Without Leave (AWOL);
3. On or about April 6, 2012, Complainant was issued memoranda critical of her performance and conduct; and
4. effective May 21, 2012, Complainant was terminated during her probationary period.
The Agency dismissed the claims for untimely EEO Counselor contact, finding that Complainant did not initiate contact with an EEO Counselor until September 7, 2012. The instant appeal followed.
ANALYSIS AND FINDINGS
EEOOC Regulation 29 C.F.R. � 1614.105(a)(1) requires that complaints of discrimination 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 a personnel action, within forty-five (45) days of the effective date of the action. 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 Agency found that the effective date of the most recent incident, Complainant's removal, was May 21, 2012, but Complainant did not contact an EEO Counselor until September 7, 2012, which is beyond the 45-day limit. The Agency noted that Complainant filed a mixed case appeal2 with the Merit Systems Protection Board (MSPB) on June 25, 2012, addressing her removal. A mixed case appeal is an appeal filed with the MSPB that alleges that an appealable agency action was effected, in whole or in part, because of discrimination on the basis of race, color, religion, sex, national origin, disability or age. 29 C.F.R. � 1614.302(a)(2). Furthermore, if:
a person files a mixed case appeal with the MSPB . . . and the MSPB dismisses the appeal for jurisdictional reasons, the agency shall promptly notify the individual in writing of the right to contact an EEO counselor within 45 days of receipt of this notice and to file an EEO complaint, subject to � 1614.107. The date on which the person filed his or her appeal with MSPB shall be deemed to be the date of initial contact with the counselor.
29 C.F.R. � 1614.302(b).
The Agency argues that the above does not apply to this matter because while Complainant did file with the MSPB, her filing in that forum should not be deemed a mixed case appeal because Complainant failed to allege before the MSPB that her removal was discriminatory. The Agency pointed to three instances in her MSPB filing where Complainant failed to assert that she believed the action was due to discrimination. Because Complainant failed to allege that her removal was effected "in whole or in part" by discrimination in her MSPB filing, the Agency argues, her filing in that forum was not a mixed case appeal and hence the rules regarding mixed case appeals do not apply.
Following a review of the record we are unpersuaded by the Agency's argument. We note that, contrary to the Agency's contention, Complainant did, in fact, allege before the MSPB that her removal was based on discrimination. Under item 6 on the MSPB Form 185-2, when Complainant was asked to, "[e]xplain briefly why you think that the agency was wrong in taking this action or making this decision," Complainant stated, "I want to file an appeal because I was wrongfully terminated . . . "[e]verytime that I had a problem with discrimination from my supervisor . . . , I reported the issues to the Union." We therefore find that Complainant's filing with the MSPB was a mixed case appeal and the tolling of the time limit for contacting an EEO Counselor therefore applies. Furthermore the fact that the MSPB appeal was dismissed for lack of jurisdiction does not mean that Complainant may not subsequently file an EEO complaint under the regulations. As noted above, � 1614.302(b) specifically acknowledges such a scenario. Given that the effective date of Complainant's removal was May 21, 2012, that Complainant filed an MSPB mixed case appeal on June 25, 2012, and that � 1614.302(b) holds that "[T]he date on which the person filed his or her appeal with MSPB shall be deemed to be the date of initial contact with the counselor," we find that claim 4 was wrongly dismissed for untimely EEO Counselor contact. With regard to the remaining claims, however, we find that the Agency correctly dismissed such claims for untimely Counselor contact. We note in this regard that the most recent incident occurred on or about April 18, 2012, and hence Complainant's June 25, 2012 MSPB filing was beyond the 45-day limit and hence was untimely.
Accordingly, the Agency's dismissal is AFFIRMED in part and REVERSED in part and we REMAND claim 4 for further processing in according with this decision and the Order below.
ORDER (E0610)
The Agency is ordered to process the remanded claim (termination) in accordance with 29 C.F.R. � 1614.108. The Agency shall acknowledge to the Complainant that it has received the remanded claim within thirty (30) calendar days of the date this decision becomes final. The Agency shall issue to Complainant a copy of the investigative file and also shall notify Complainant of the appropriate rights within one hundred fifty (150) calendar days of the date this decision becomes final, unless the matter is otherwise resolved prior to that time. If the Complainant requests a final decision without a hearing, the Agency shall issue a final decision within sixty (60) days of receipt of Complainant's request.
A copy of the Agency's letter of acknowledgment to Complainant and a copy of the notice that transmits the investigative file and notice of rights must be sent to the Compliance Officer as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0610)
Compliance with the Commission's corrective action is mandatory. The Agency shall submit its compliance report within thirty (30) calendar days of the completion of all ordered corrective action. The report shall be submitted to the Compliance Officer, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC 20013. The Agency's report must contain supporting documentation, and the Agency must send a copy of all submissions to the Complainant. If the Agency does not comply with the Commission's order, the Complainant may petition the Commission for enforcement of the order. 29 C.F.R. � 1614.503(a). The Complainant also has the right to file a civil action to enforce compliance with the Commission's order prior to or following an administrative petition for enforcement. See 29 C.F.R. �� 1614.407, 1614.408, and 29 C.F.R. � 1614.503(g). Alternatively, the Complainant has the right to file a civil action on the underlying complaint in accordance with the paragraph below entitled "Right to File a Civil Action." 29 C.F.R. �� 1614.407 and 1614.408. A civil action for enforcement or a civil action on the underlying complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c) (1994 & Supp. IV 1999). If the Complainant files a civil action, the administrative processing of the complaint, including any petition for enforcement, will be terminated. See 29 C.F.R. � 1614.409.
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 (R0610)
This is a decision requiring the Agency to continue its administrative processing of your complaint. However, if you wish to file a civil action, you have the right to file such action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision. In the alternative, you may file a civil action after one hundred and eighty (180) calendar days of the date you filed your complaint with the Agency, or filed your appeal with the Commission. 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. 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 attorneyth 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
October 8, 2014
__________________
Date
1 Complainant contends that she contacted the Agency on numerous occasions notifying them that she had not received the Dismissal and asking the Agency to re-send it, all to no avail until she finally received it on or about April 11, 2014. We note that the Agency has not argued that the appeal is untimely.
2 We note that at various points in the record, the Agency uses the term "mixed case complaint" when in fact Complainant filed a mixed case appeal.
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0120141873
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120141873