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Timeliness
Extension of Time for Contacting EEO Counselor Warranted. Complainant initially contacted an EEO Counselor on April 19, 2011, alleging that the Agency discriminated against him on the bases of his race, color and disability. The Agency acknowledged Complainant's EEO contact and asked him to complete pre-complaint counseling forms. The Agency indicated that Complainant's failure to complete the forms within 10 days could result in the closing of his complaint for failure to proceed. Complainant e-mailed the Agency on May 1, 2011, stating that he received the forms on April 21, 2012, but did not have sufficient time to complete them due to work obligations and pending leave. Complainant indicated that he intended to continue to pursue his allegations and requested an extension of time in which to complete the required forms. There is no indication in the record that the Agency responded to Complainant's request. Complainant made an additional request for an extension, but the Agency advised him that his request for counseling had been closed. The Agency noted that Complainant should submit a written allegation or the completed forms if he believed it should reconsider the decision to cancel his counseling request. Complainant contacted the Agency several times thereafter, but there was no indication in the record that the Agency ever replied to Complainant's requests for an extension. Complainant submitted the forms, and the Agency ultimately dismissed the complaint for failure to timely contact an EEO Counselor. On appeal, the Commission found sufficient evidence in the record to warrant an extension of the time limit for initiating EEO contact. The Commission noted that the Agency failed to respond to any of Complainant's repeated requests to extend the counseling period. Therefore, the dismissal was improper and the complaint was remanded for further processing. Michael v. U.S. Postal Serv., EEOC Appeal No. 0120130329 (March 22, 2013).
EEO Counselor Contact Deemed Timely. Complainant filed a formal EEO complaint alleging that the Agency discriminated against her when it terminated her from her position in November 2011. The Agency dismissed the complaint, stating that Complainant's contact with the EEO Counselor in August 2012 was beyond the 45-day limitation period. On appeal, the Commission found that the Agency failed to meet its burden of obtaining sufficient information to support a reasoned determination as to timeliness. Complainant, on appeal, stated that she initially contacted EEO personnel in November 2011, and was told that she could pursue the matter first with the Office of Professional Responsibility Board (OPRB) then subsequently file an EEO complaint. Complainant noted that an EEO Specialist contacted her in August 2012, and she told the Specialist that she had filed a claim with OPRB first on the advice of EEO personnel. The Commission noted that the Agency failed to respond to Complainant's assertion that she was provided with inaccurate information when she initially contacted EEO staff in November 2011. Thus, the matter was remanded for processing. Gaines v. Dep't of Homeland Sec., EEOC Appeal No. 0120130405 (March 19, 2013).
EEO Counselor Contact Timely. Complainant, an applicant for employment with the Agency, contacted an EEO Counselor on November 17, 2011, and subsequently filed a formal complaint alleging that the Agency discriminated against him when it rescinded a job offer in August 2011. The Agency dismissed the complaint for failure to timely contact an EEO Counselor. On appeal, the Commission found that the Agency improperly dismissed the complaint. The record did not clearly support the Agency's claim that Complainant reasonably suspected discrimination on August 5, 2011. Complainant informed the Counselor that he believed he was discriminated against on the basis of a perceived disability due to a statement made by a former co-worker during the background investigation. Complainant stated that he learned of the statement on October 11, 2011, and had no prior knowledge of a perceived disability. Complainant denied telling the Agency that he suspected discrimination in August. The record contained evidence of an e-mail exchange between Complainant and the Counselor in which Complainant indicated that he learned of the discrimination on October 11, 2011. Thus, the Commission determined that Complainant timely contacted the EEO Counselor upon learning of the alleged discrimination. Michel v. Dep't of Justice, EEOC Appeal No. 0120123297 (January 18, 2013).
Dismissal of Complaint for Failure to Timely Contact EEO Counselor Improper. Complainant contacted an EEO Counselor on April 11, 2011, and subsequently filed a formal complaint alleging that the Agency discriminated against her when it issued her a Notice of Removal in August 2010. Complainant stated that, during a March 2011 arbitration hearing, she learned for the first time that comparable employees did not receive similar Notices. The Agency dismissed the complaint for failure to timely contact an EEO Counselor. On appeal, the Commission found that the Agency's dismissal was improper. The record contained no evidence rebutting Complainant's assertion that she first learned that similarly situated co-workers received less harsh discipline for the same infraction in March 2011. In fact, Complainant's assertion was corroborated by an Agency Supervisor. The Agency failed to present any evidence to support its assertion that Complainant should have developed a reasonable suspicion of discrimination at an earlier date. Thus, the Agency failed to meet its burden of obtaining sufficient information to support a reasoned determination as to timeliness. Schroeder v. U.S. Postal Serv., EEOC Appeal No. 0120113585 (January 11, 2013).
Complaint Improperly Dismissed as Untimely. Complainant contacted an EEO Counselor in May 2010, alleging that the Agency discriminated against him when it subjected him to a hostile work environment. On June 8, 2010, the EEO Counselor sent Complainant an e-mail "Notice of Rights-Extension of Time," asking Complainant to agree to a 60-day extension of time for informal processing. The e-mail stated that Complainant had five days to respond to the request. The EEO Counselor then sent Complainant a Notice of Right to File a Formal Complaint on June 10. Complainant responded to the EEO Counselor on June 12, 2010, questioning the two Notices, and signed an Extension of Time form on that date. Complainant subsequently amended his complaint to include the issue of his termination, and filed a formal EEO complaint on August 22, 2012. The Agency dismissed the complaint as untimely. On appeal, the Commission stated that the Agency provided unclear information to Complainant, and Complainant reasonably believed that the informal counseling period had been extended. Complainant responded to the request for an extension of time within the five day period specified by the EEO Counselor, and agreed to extend the informal processing. The record was devoid of evidence that the Agency communicated to Complainant that it would not extend the counseling period. Instead, the record suggested that the Agency was continuing to process the complaint at the informal stage. The EEO Counselor's report indicated that an extension request was granted on June 12, 2010, and that the Counselor was still processing the matter at the informal level subsequent to the Notice being issued on June 10. Therefore, the Commission stated that the Agency should have issued Complainant a valid Notice of Right to File subsequent to the extension of the counseling period. The Commission rejected the Agency's assertion that the doctrine of laches should bar Complainant's claim, stating that the Agency's actions contributed to Complainant's belief that it was continuing to process the complaint at the informal level. Thus, the Commission concluded that the dismissal was improper. Williams v. Dep't of Def., EEOC Appeal No. 0120130153 (February 11, 2013).
Formal Complaint Timely Filed. Complainant filed a formal complaint on June 9, 2011, alleging that the Agency subjected her to discrimination on the basis of her disability and in reprisal for prior EEO activity. The Agency dismissed the complaint as untimely, stating that Complainant received the notice of right to file a formal complaint by e-mail on May 16, 2011. On appeal, the Commission found that the dismissal was improper. While the e-mail expressly requested that Complainant confirm receipt of the notice, the Agency did not submit any evidence showing that Complainant received the notice on May 16, and Complainant did not acknowledge receipt of the e-mail on that date. Thus, the Commission concluded that the Agency failed to meet its burden of obtaining sufficient information to support a determination as to timeliness, and the Commission was not persuaded that the complaint was not timely filed. Miller v. Dep't of the Army, EEOC Appeal Nol. 0120113549 (January 31, 2013).
Extension of Time for Filing Formal Complaint Warranted. Complainant filed a formal EEO complaint alleging that the Agency discriminated against him when it subjected him to two drug tests, placed him on emergency off-duty non-pay status, and revealed his medical information to his co-workers. The Agency dismissed the complaint as untimely. The record showed that Complainant received the notice of right to file a formal complaint on May 23, 2012, and the Agency received the formal complaint in an envelope without a postmark on June 15, 2012. Complainant was assumed to have filed his complaint within five days of the Agency's receipt, which was eight days beyond the applicable 15-day limitation period. On appeal, Complainant presented a letter from his psychologist indicating that, during the period in question, he was diagnosed with a major depressive disorder and anxiety and was taking a number of different medications. The psychologist stated that Complainant's symptoms included significant concentration and memory deficits which would have "severely limited his ability" to navigate the EEO process. Thus, the Commission found that an extension of the time limit for filing a complaint was warranted in this case. Hambrick v. U.S. Postal Serv., EEOC Appeal No. 0120123246 (January 15, 2013).
Formal Complaint Timely Filed. Complainant filed a formal EEO complaint alleging that the Agency discriminated against her when it failed to reasonably accommodate her and issued her a notice of separation. The Agency dismissed the complaint as untimely. On appeal, the Commission found that the Agency's dismissal was improper. According to the record, Complainant received the notice of right to file a formal complaint on June 4, 2012. Complainant dated her complaint on June 18, 2012, and the complaint was mailed to the Agency by Priority Mail in an envelope containing a mailing label issued by the Postal Service on that date. The Agency asserted that Complainant did not actually mail her complaint until June 27, 2012, as evidenced by its Track and Confirm system which indicated that the envelope was not "Enroute/processed" until that date. The Commission found, however, that the Track and Confirm system was not adequate proof that Complainant did not mail the envelope containing the complaint on June 18, the date she purchased the label. The Commission noted that there were many potential reasons for the delay and no affirmative proof that Complainant delayed mailing her complaint. Sullivan v. U.S. Postal Serv., EEOC Appeal No. 0120123247 (January 15, 2013).
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