Loren D. Lodge, Complainant, v. Michael J. Astrue, Commissioner, Social Security Administration, Agency. Appeal No. 0120110847 Agency No. HQ-10-0826-SSA DECISION Complainant filed a timely appeal with this Commission from the Agency's final decision 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 During the period at issue, Complainant worked as a Program Analyst at the Agency’s Office of Disability Determinations in Baltimore, Maryland. He was in his probationary period. On August 24, 2010, Complainant filed the instant formal complaint claiming the Agency subjected him to discriminatory harassment on the bases of sex (male), disability (diabetes and hypertension), and in reprisal for prior protected activity when: 1. on May 4, 2010, Complainant was terminated from his Program Analyst (GS-13) position; 2. on April 6, 2010, during a meeting, Complainant’s Division Director told him “man up" . . . “as men don’t cry;” 3. in March 2010, Complainant’s Division Director informed him that she did not like the way he looked at her and that he was no longer allowed to exhale loudly or cross his arms; and 4. since January 2010: • Complainant was denied proper training as it relates to his job duties; • Complainant did not receive a performance review in accordance with personnel policy; • Complainant’s Team Leader refused to answer work-related questions and informed him that his questions were "basic stupid questions;” • Complainant was constantly told by his Division Director that he was a probationary employee and could be terminated at any time. In addition, the Division Director also told him to “man up” because he worked in a female environment; and • the Division Director refused to address his Team Leader's resentment and harassing conduct towards him. The record contains a copy of an electronic mail, dated March 11, 2010, to a high ranking management official. Therein, Complainant raised his concerns of harassment about his supervisor (Team Leader) and stated, “I really feel like I need to go file a complaint with personnel regarding her behavior, but will wait for your counsel.” In its final decision dated October 20, 2010, the Agency dismissed Complainant’s formal complaint on the grounds of untimely EEO Counselor contact pursuant to 29 C.F.R. § 1614.107(a) (2). In its decision, the Agency found that Complainant first contacted an EEO Counselor on June 22, 2010, more than 45 days after the last alleged event that occurred on May 4, 2010, when he was terminated from his position. The Agency also dismissed reprisal as a basis of Complainant’s complaint asserting that Complainant had not engaged in EEO activity prior to the instant complaint. CONTENTIONS ON APPEAL On appeal, Complainant stated that he delayed contact because he was unaware of where to go to seek assistance. Specifically, Complainant stated that he was orally informed about his appeal rights when he was terminated. However, Complainant asserted that he attempted to contact the Agency’s Personnel Office to request further information, but that his messages were not returned. Complainant also stated that he was instructed to seek information in the Agency’s internal website, but that he could not gain access it because he was not longer an employee. Finally, Complainant said he sent a letter dated June 11, 2010, to the Agency’s EEO office in Woodland, Maryland, asking for assistance. Complainant indicated that shortly thereafter he was contacted by the Agency’s EEO Counselor. On appeal, the Agency requests that the Commission affirm its final action. Regarding Complainant’s assertions on appeal, the Agency noted that Complainant presented no evidence of his attempts, via telephone calls, emails or letters, to contact an EEO Counselor prior to June 22, 2010. The one exception, according to the Agency, was Complainant’s June 11, 2010 letter, which appeared in the EEO counseling report. However, the Agency noted that there was no indication when this letter was actually sent or received. 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 also 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. 29 C.F.R. § 1614.105(a)(2). We conclude that the Agency erred in dismissing the instant complaint for untimely EEO Counselor contact. Complainant's email to a management official dated March 11, 2010, reporting the alleged harassment from his team leader and stating he wanted to file a complaint, as well as his June 11, 2010 letter to the Agency’s EEO office concerning his claims of discriminatory harassment, satisfy EEOC regulations regarding EEO contact. Specifically, Complainant contacted an agency official logically connected with the EEO process and exhibited an intent to begin the EEO process. See Allen v. United States Postal Service, EEOC Request No. 05950933 (July 8, 1996). We further note that it appears from a review of the record that Complainant, a new probationary employee, was not aware of his EEO rights or who he needed to contact to initiate the EEO process. The Agency failed to provide any supporting evidence that Complainant was aware of the 45-day limitation period for contacting an EEO counselor. The Commission has held that where there is an issue of untimeliness, the Agency always bears the burden of obtaining sufficient information to support a reasoned determination as to timeliness. See Williams v. Department of Defense, EEOC Request No. 05920506 (August 25, 1992). Under these circumstances, we find that there is sufficient justification to extend Complainant's time for seeking counseling. As a final note, as we are remanding the complaint to the Agency for investigation, the Agency’s assertion that there is no evidence of record that Complainant previously engaged in any protected activity which could result in being subjected to unlawful retaliation can be addressed during that investigation. CONCLUSION The Agency’s dismissal of Complainant's formal complaint on the grounds of untimely EEO Counselor contact is REVERSED. The complaint is REMANDED to the agency for processing in accordance with the Order set forth below. ORDER (E0610) The Agency is ordered to process the remanded claims (termination and harassment) in accordance with 29 C.F.R. § 1614.108 et seq. 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 (T0610) This decision affirms the Agency’s final decision/action in part, but it also requires the Agency to continue its administrative processing of a portion of your complaint. 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 on both that portion of your complaint which the Commission has affirmed and that portion of the complaint which has been remanded for continued administrative processing. 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 your appeal with the Commission, until such time as the Agency issues its final decision on your complaint. 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 May 12, 2011 __________________ Date 2 0120110847 U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 2 0120110847