U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 August V.,1 Complainant, v. Jacob J. Lew, Secretary, Department of the Treasury, Agency. Appeal No. 0120152782 Agency No. BFS151395F DECISION Complainant filed a timely appeal with this Commission from the Agency's decision dated August 10, 2015, dismissing his 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., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as an External Communications Advisor at the Agency's Fiscal Service Office of Legislative and Public Affairs facility in Washington, District of Columbia. On November 24, 2014, Complainant requested 120 hours of annual leave to use by January 9, 2015. On November 26, 2014, Complainant's supervisor informed Complainant that, based on business-related reasons and the short notice of his request, he could only grant Complainant 80 hours of the leave he requested. On December 24, 2014, Complainant initiated contact with an EEO Counselor on the matter, alleging the denial of his leave request was based on his age and disability. He did not file a formal EEO complaint at the time. Complainant then pursued alternative processes in an attempt to restore his leave. When his leave was not restored, on June 3, 2015, Complainant again contacted an EEO Counselor concerning the matter. On July 20, 2015, Complainant filed a formal EEO complaint alleging that the Agency subjected him to discrimination on the bases of disability, age, and in reprisal for prior protected EEO activity under when on November 26, 2014, his request for annual leave was partially denied, forcing him to lose the unused leave. On August 6, 2015, the EEO Office sent Complainant an email requesting the cause of Complainant's delay in following through with EEO counseling on this matter. Complainant responded that he had sought to recover his lost annual leave through other available alternatives.2 On August 10, 2015, 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 determined that though initiating contact in December 2014, Complainant then abandoned the EEO complaint process, in an effort to seek an alternative resolution to restore his leave. The Agency stated that after this alternative resolution attempt was unsuccessful, Complainant again attempted to resume the EEO process in June 2015, approximately 6 months after his initial EEO Counselor contact on December 24, 2014. The Agency determined that Complainant had abandoned his initial claim (December 24, 2014) and did not articulate a good cause for extending the regulatory time limits. The instant appeal followed. On appeal, Complainant contends that the Agency presented "misleading and factually incorrect [information] for some critical points surrounding the timeliness of [his] request for an EEO hearing." Complainant states that he would provide documents demonstrating that he did indeed file everything in a timely manner. Complainant requested a few days to gather the documentation. 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 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 he was not notified of the time limits and was not otherwise aware of them, that he did not know and reasonably should not have known that the discriminatory matter or personnel action occurred, that despite due diligence he was prevented by circumstances beyond his control from contacting the Counselor within the time limits, or for other reasons considered sufficient by the agency or the Commission. Ellis v. United States Postal Service, EEOC Request No. 01992093 (Nov. 29, 2000). The Commission has held that "a complainant who receives counseling on an allegation, but does not go forward with a formal complaint on that allegation is deemed to have abandoned it and consequently, cannot raise it in another complaint." Small v. U.S. Postal Service, EEOC Request No. 05980289 (July 16, 1999). Here, Complainant first sought EEO counseling on the pay claim in December 2014, but did not continue to pursue the claim until June 2015. We therefore determined that Complainant abandoned his EEO contact of December 2014. Additionally, the Commission has consistently held that use of internal agency procedures, union grievances, and other remedial processes does not toll the time limit for contacting an EEO Counselor. See Kramer v. United States Postal Service, EEOC Appeal No. 01954021 (October 5, 1995); Williams v. United States Postal Service, EEOC Request No. 05910291 (April 25, 1991); Ellis v. United States Postal Service, EEOC Request No. 01992093 (Nov. 29, 2000). Moreover, based on a review of the record, it does not appear that Complainant was unaware of the relevant time limitation. Therefore, we find that Complainant failed to provide sufficient justification for extending the time limit for contacting an EEO Counselor. In sum, the record demonstrates that Complainant initially sought EEO counseling on December 24, 2014, regarding his claim. However, Complainant abandon his claim at that time in favor of alternative processes in an attempt to restore his leave and when those processes did not provide the relief he sought, Complainant returned to the EEO process on June 3, 2015, and then filed his formal complaint on July 20, 2015. The Agency's decision to dismiss the complaint was proper and is hereby AFFIRMED for the reasons discussed above. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0815) 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 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, 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 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 December 23, 2015 __________________ Date 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. 2 On February 6, 2015, Complainant requested that the EEO Office's Deputy Commissioner restore 162 hours of unused leave. On April 30, 2015, the Deputy Commissioner restored 40 hours of leave. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 2 0120152782 2 0120152782