U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Linette F.,1 Complainant, v. Denise Turner Roth, Administrator, General Services Administration, Agency. Appeal No. 0120172475 Agency No. GSA-17-CO-Z-0118 DECISION Complainant filed a timely appeal with this Commission from an Agency final decision, dated June 19, 2017, 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. The Commission accepts the appeal in accordance with 29 C.F.R. § 1614.405. BACKGROUND During the relevant time, Complainant worked as a Program Analyst for the Agency's Office of Strategic Communications, in the Operations Division, of the Digital Communications Program Management Office in Washington, D.C. Believing that she was being subjected to discrimination based on her disability and in reprisal for her prior protected EEO activity, Complainant contacted an EEO Counselor on June 2, 2016. At approximately the same time, Complainant applied for disability retirement. Informal efforts to resolve Complainant's concerns were unsuccessful. On September 13, 2016, Complainant filed a formal complaint alleging she was constructively discharged (Case No. GSA-16-CO-Z-0126).2 The Agency issued a decision, on October 11, 2016, dismissing the constructive discharge claim, for failure to state a claim. Noting that Agency records showed Complainant was still an Agency employee, the Agency reasoned that Complainant had alleged a future or prospective harm or loss which did not render her an "aggrieved" employee. Further, Complainant was advised that "... in the event you do retire . . . [you] may initiate a new EEO complaint within forty-five days ...." Thereafter, on April 17, 2017, Complainant again contacted an EEO Counselor. Complainant filed a formal complaint on June 2, 2017, again alleging she was constructively discharged. The Agency, in a decision dated June 19, 2017, dismissed the formal complaint for untimely EEO Counselor contact. The Agency found that Complainant's initial EEO Counselor contact was seventy-two days after her retirement, and therefore beyond the time limit. The Agency noted that Complainant seemed to suggest that her receipt of OPM's "Explanation of Benefits", in April 2017, triggered her suspicion of discrimination. The Agency reasoned, however, that "nowhere does the record show what (if anything) you learned between the effective date of your retirement and the April booklet." Moreover, stated the Agency, Complainant clearly suspected discrimination regarding her separation as early as June 2, 2016, the date of her prior EEO Counselor contact. Complainant filed the instant appeal. On appeal, Complainant first contends that the Agency has mischaracterized her formal complaint. Complainant argues that, instead of her raising a single and separate act of constructive discharge, the Agency has failed to accommodate her since July 16, 2015. Complainant asserts that, after requesting an accommodation, the Agency harassed and treated her disparately, which exacerbated her medical conditions and led to her retirement. Complainant asserts that to frame the claim as simply a matter of constructive discharge is "grossly inaccurate". ANALYSIS AND FINDINGS Framing of Complaint Complainant's appellate assertions as noted above are supported by her formal complaint. Therein, Complainant clearly alleges: "[b]egining on June 16, 2015 and ongoing, the Agency failed to accommodate [me] after [I] requested an accommodation in order to manage [my] disabling conditions." Further, after her request the Agency subjected her to retaliatory harassment. Complainant stated that the Agency's purportedly discriminatory actions led to the exacerbation of her medical condition, which in turn, resulted in her application for disability retirement. In her complaint, Complainant explained that she retired "out of desperation" when the Agency ignored her requests for an accommodation and failed to engage in the interactive process. In the EEO Counselor's Report, the "Issue" is framed as constructive discharge This document, however, later notes: "Complainant subsequently advised Counselor she is alleging she was "forced to go on disability retirement due to the complications resulting from the Agency's unlawful conduct. (emphasis added)"3 Therefore, we find that Complainant's claim of constructive discharge includes the events preceding her application for disability retirement, including her requests for an accommodation and the Agency's alleged failure to provide an accommodation or engage in the interactive process. Untimely 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 a 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. 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. As noted above, the Agency dismissed the complaint for untimely EEO Counselor contact. The Agency reasoned that the effective date of Complainant's retirement was February 4, 2017, and Complainant did not contact the EEO Counselor until April 17, 2017, well beyond the forty-five day time limitation. Complainant argues she was unaware of the February 4, 2017 date referenced by the Agency. She maintains that the only correspondence she received regarding her retirement was from OPM. In a January 23, 2017 letter, OPM notified her that her application for disability retirement was approved, but it also noted "according to the information we received from your agency, you have not been separated from Federal Service." Approximately two weeks later, in a letter dated February 7, 2017, OPM placed Complainant in an "interim payment status," which allowed her to receive some income while it "complete[s] the processing your application for benefits." It was not until OPM's April 9, 2017, "Explanation of Benefits" statement was received by Complainant, that she believed she was no longer employed by the Agency. Days later, she contacted the EEO Counselor. The instant record does not contain any evidence that Complainant was removed on February 4, 2017, or that Complainant was informed at that time. Therefore, we find that the Agency has failed to substantiate the bases for its final decision. See Marshall v. Dep't of the Navy, EEOC Request No. 05910685 (Sept. 6, 1991). CONCLUSION The Agency's final decision dismissing the formal complaint is REVERSED. The formal complaint is REMANDED to the Agency for further processing in accordance with the ORDER below. ORDER (E0610) The Agency is ordered to process the remanded claims in accordance with 29 C.F.R. § 1614.108. The Agency shall acknowledge to the Complainant that it has received the remanded claims 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 (K0617) 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 in the digital format required by the Commission, and submitted via the Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). 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 (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. 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 (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 October 13, 2017 __________________ 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 In its October 11, 2016 decision, the Agency framed the claims comprising the formal complaint. In addition to constructive discharge the complaint included three other claims. Reasoning that these additional claims were non-mixed, and needed to be bifurcated from the mixed constructive discharge claim, the Agency notified Complainant that if she wished to pursue the other three claims she would need to initiate a new complaint. 3 The Notice of Right to File Discrimination Complaint fails to define the complaint, referring generally to "matter/s" counseled. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 2 0120172475 2 0120172475