U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Stan G.,1 Complainant, v. Alex M. Azar II, Secretary, Department of Health and Human Services, Agency. Appeal No. 0120180465 Agency No. HHSOS00652017 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's decision dated October 23, 2017, dismissing a formal complaint alleging 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 During the period at issue, Complainant was an applicant for employment for the positon of Security/Paramedic, GS 12, at the Agency's facility in Viera, Florida. On September 15, 2017, Complainant initiated EEO Counselor contact. Informal efforts to resolve his concerns were not successful. On October 12, 2017, Complainant filed a formal complaint alleging that the Agency subjected him to discrimination based on disability (diabetes) when: 1. from May 2017 to the present, he was denied training and deployment with a disaster management team due to his use of an insulin pump to manage his diabetes; 2. from May 2017 to the present, he has lost compensation due to the lost opportunity to deploy with a disaster management team; and 3. on August 26, 2017, the Agency notified him that he was deemed non-deployable in disaster relief efforts. In his formal complaint, Complainant stated that an Agency official indicated that because Complainant used an insulin pump, he could not be deployed as part of a disaster management team. Complainant stated that he unsuccessfully provided supporting statements from his endocrinologist, but that the Agency refusal to place him in a deployable status was a "clear case of medical discrimination." In a final decision dated October 23, 2017, the Agency dismissed the matter as untimely pursuant to EEOC Regulation 29 C.F.R. § 1614.107(a)(2). The Agency determined that Complainant's contact of an EEO Counselor regarding his concerns was beyond the applicable time limitations for timely seeking EEO contact. This 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 a personnel action, within forty-five (45) days of the effective date of the action. The record in this matter indicates that Complainant, a full-time deputy sheriff, who was diagnosed with juvenile diabetes when he was sixteen, applied for an emergency team position with the Agency's National Disaster Medical System, Office of Emergency Management. The record discloses that the Office of Emergency Management deploys individuals who are not necessarily its regular employees to assist with emergency relief efforts after national disasters. The Agency asserts it sent Complainant a letter by certified and regular mail, dated June 13, 2017, notifying him that he was determined to be non-deployable for disaster relief efforts due to medical reasons. Therefore, the Agency considered June 13, 2017, as the latest date Complainant knew or should have known about the alleged disability discrimination. As he did not seek EEO counseling on the matter until September 15, 2017, the Agency determined this contact was beyond the 45-day limitation period. However, the Agency concedes in its final decision, that the June 13, 2017 notification of non-deployability status, sent by certified mail, was returned to the Agency as not delivered. The Agency surmised, without evidence, that Complainant must have received the copy of the notification sent by regular mail. The EEO Counselor's report states that Complainant, on the other hand, claimed that he was notified on August 26, 2017, by the Commander, DMAT Team #6, that he was placed on the non-deployable list, when he signed up to be deployed for both Hurricane Harvey (August-September 2017) and Hurricane Irma (August-September 2017). He stated that his team2 was activated on August 29, 2017, for these disaster events, but he was not permitted to go because of his insulin pump. Complainant asserts that he made several attempts to change his status with additional medical documentation, but received no response. Where, as here, there is an issue of timeliness, "[a]n agency always bears the burden of obtaining sufficient information to support a reasoned determination as to timeliness." Guy v. Department of Energy, EEOC Request No. 05930703 (January 4, 1994) (quoting Williams v. Department of Defense, EEOC Request No. 05920506 (August 25, 1992)). Here, the Agency has failed to provide evidence to dispute Complainant's assertion that he was informed of his non-deployable status on August 26, 2017, when he sought to join an emergency team for Hurricanes Harvey and Irma, both occurring in August-September 2017. While the Agency asserts Complainant must have received an earlier letter, dated June 13, 2017, advising him of his medical disqualification for future teams, it concedes the certified letter was never delivered and offers mere speculation that another copy, sent by regular mail, was received by Complainant. Complainant contacted an EEO Counselor on September 15, 2017, well within the 45-day limitation period from the August 26, 2017 notice he was disqualified from being deployed with the late August emergency team. Under the circumstances presented by this case, we conclude that the Agency erred in dismissing the complaint for untimely EEO Counselor contact. CONCLUSION Accordingly, the Agency's final decision dismissing Complainant's complaint is REVERSED. The instant formal complaint is REMANDED to the Agency for further processing in accordance with this decision and the Order below. ORDER (E1016) The Agency is ordered to process the remanded claims in accordance with 29 C.F.R. § 1614,108 et seq. The Agency shall acknowledge to the Complainant that it has received the remanded claims within thirty (30) calendar days of the date this decision was issued. 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 was issued, 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 March 23, 2018 __________________ 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 Complainant had previously been deployed by the Agency for Hurricane Sandy and to several locations overseas, and served as a paramedic or in security. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 2 0120180465 6 0120180465