Complainant, v. Eric H. Holder, Jr., Attorney General, Department of Justice (U.S. Marshals Service), Agency. Appeal No. 0120150686 Agency No. USM-2014-00601 DECISION Complainant filed a timely appeal with this Commission from the Agency's final decision dated November 6, 2014, dismissing a formal 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 Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. BACKGROUND On December 2, 2012, Complainant was hired as a Systems Accountant at the Agency's Financial Services Division in Alexandria, Virginia, under Schedule A, Excepted Service appointment and subject to a two-year probationary period. On May 13, 2014, Complainant initiated EEO Counselor contact. Informal efforts to resolve her concerns were unsuccessful. On June 24, 2014, Complainant filed the instant formal complaint. Therein, Complainant alleged that the Agency subjected her to discrimination on the bases of disability and in reprisal for prior EEO activity when: on January 10, 2014, she was terminated during her probationary period from her position as System Accountant. The record reflects that on May 6, 2014, Complainant, through her attorney, called the Agency's EEO office to ascertain the status of a request for EEO counseling which Complainant's attorney asserted had previously been initiated. After the Director of the EEO office spoke with the Complaints Manager on May 9, 2014, it was determined that any EEO counseling request which Complainant had previously attempted had not been received by the EEO office. Thereafter, on May 9, 2014, Complainant's attorney submitted a copy of an e-mail dated February 12, 2014, in which he stated was forwarded on behalf of his client to the EEO office requesting EEO counseling. A review of the February 12, 2014 email indicated that it was forwarded to an incorrect email address. Consequently, an EEO Counselor was assigned on May 13, 2014, and counseling continued until the Notice of Right to File a Discrimination Complaint was issued on June 6, 2014. The instant complaint was filed on June 24, 2014. In its final decision, the Agency dismissed Complainant's complaint on the grounds of untimely EEO Counselor contact, pursuant to 29 C.F.R. § 1614.107(a)(2). The instant appeal followed. 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 record reflects that on January 9, 2014, Complainant received a letter from the Chief, Office of Finance informing her that effective close of business on January 10, 2014, she was being terminated during her probationary period. The January 9, 2014 letter also placed Complainant on notice that if she believed the termination was taken because of discrimination, she could file a discrimination complaint by calling the EEO office within 45 days of the effective date of the action. A telephone number was expressly provided for contact with the EEO office and/or for further information concerning the EEO complaint process. The record further reflects that neither Complainant nor her attorney telephoned the EEO office referenced above to initiate a request for counseling. Rather, Complainant's attorney drafted a letter dated February 12, 2014, and submitted it via email to what he determined belong to a named EEO officer. However, the February 12, 2014 letter was never received by the EEO Officer because the email address was incorrect, and apparently was transmitted to another Agency employee with the same first and last name. This error was not discovered until May 9, 2014, after Complainant's attorney made a telephone inquiry to the EEO office on May 6, 2014. It is undisputed that on January 9, 2014, Complainant was placed on notice that she would be terminated during her probationary period effective January 10, 2014, but she and her attorney did not further pursue this matter with the EEO office until May 6, 2014, which is beyond the forty-five day limitation period. The major issue is whether mistakenly sending the February 12, 2014 letter to the wrong email address for the EEO Officer constitutes valid EEO Counselor contact. However, despite this letter, which was issued prior to the expiration of the 45-day limitation period (on February 12, 2014), Complainant's attorney waited until May 6, 2014 to inquire about the status of Complainant's request for counseling. Complainant and her attorney have not provided an adequate explanation for why they did not promptly contact the EEO office at the telephone number provided in Complainant's January 9, 2014 termination letter. In summary, we determine that, on appeal, Complainant did not present persuasive arguments or evidence warranting an extension of the time limit for initiating EEO Counselor contact. See 29 C.F.R. § 1614.604(c). The Agency's final decision dismissing Complainant's formal complaint for the reason stated herein 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" 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 April 14, 2015 __________________ Date 2 0120150686 U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 2 0120150686 5 0120150686