0120122549
10-10-2012
Barbara J. Burgo, Complainant, v. Dr. Rebecca Blank, Acting Secretary, Department of Commerce (Bureau of the Census), Agency.
Barbara J. Burgo,
Complainant,
v.
Dr. Rebecca Blank,
Acting Secretary,
Department of Commerce
(Bureau of the Census),
Agency.
Appeal No. 0120122549
Hearing No. 510-2011-00046X
Agency No. 10-63-00334D
DECISION
Complainant appeals to the Commission from the Agency's final decision dated April 17, 2012, dismissing a portion of her complaint due to untimely EEO Counselor contact, pursuant to 29 C.F.R. � 1614.107(a)(2), and finding no discrimination regarding the remainder of the complaint. For the following reasons, we AFFIRM the Agency's final decision.
BACKGROUND
In her complaint, filed on February 22, 2010, Complainant, a former Partnership Specialist with the Agency's Boston Regional Census Center, alleged discrimination based on sex (female), national origin (Cape Verdean), and in reprisal for opposing discrimination when she was subjected to harassment since November 26, 2009.
Complainant also claimed numerous incidents which occurred from March, 2008, i.e., her reassignment to Regional Census Center (RCC), to September 30, 2009, i.e., when she was issued a low FY2009 performance evaluation. The record indicates that on April 9, 2010, the Agency, enumerating 17 separate incidents occurring during that time period, dismissed the incidents occurring before November 26, 2009, since Complainant's EEO Counselor contact on January 8, 2010, was untimely.
The Agency accepted and investigated Complainant's harassment claim which occurred after November 26, 2009. After completion of the investigation of the subject claim, Complainant requested a hearing but later withdrew the request. The Agency then issued its final Agency decision concluding that it asserted legitimate, nondiscriminatory reasons for its actions, which Complainant failed to rebut. 1
ANALYSIS AND FINDINGS
Initially, we find that the Agency properly dismissed the incidents which occurred from March, 2008, until November 26, 2009. EEOC Regulation 29 C.F.R. �1614.105(a)(1) requires that complaints of discrimination be brought to the attention of the EEO Counselor within 45 days of the alleged discriminatory event, or the effective date of an alleged discriminatory personnel action. Furthermore, the Commission has adopted a "reasonable suspicion" standard (as opposed to a "supportive facts" standard) to determine when the limitation period is triggered under the EEOC Regulations. See 29 C.F.R. �1614.105(a)(2); Ball v. United States Postal Service, EEOC Request No. 05880247 (July 6, 1988). Thus, the limitations period is not triggered until a complainant reasonably should have suspected discrimination, but before all the facts that would support a charge of discrimination have become apparent.
The record indicates that the last incident prior to November 26, 2009, occurred on September 30, 2009, when Complainant was issued a level 2 rating, i.e., needs to improve overall performance rating. Complainant, however, did not contact an EEO Counselor regarding her claims until January 8, 2010, which was beyond the 45-day time limit set by the regulations. On appeal, Complainant contends that she did not timely contact an EEO Counselor regarding the incidents occurring before November 26, 2009, because she had no proof of discrimination at the time of alleged incidents. Complainant indicates that she timely contacted an EEO Counselor as soon as she found out "the proof of a biased situation." After a review of the record, we find that Complainant should have reasonably suspected discrimination at the time of the incidents and not when she later obtained the evidence that may (or may not) support the discrimination. We further find that we can not characterize the dismissed claims as being part of the timely raised claim of harassment, because, as discussed herein, there is no persuasive evidence (or any evidence apart from Complainant's assertion) linking the telephone calls to the dismissed incidents. Furthermore, Complainant does not proffer any evidence that she was not aware of the requisite time limit or she was so physically or emotionally incapacitated as to be unable to make timely EEO Counselor contact. Based on the foregoing, we find that Complainant failed to present adequate justification to warrant an extension of the applicable time limit for contacting an EEO Counselor regarding the incidents occurring before November 26, 2009.
Turning to the incidents which occurred on November 26, 2009, and thereafter, as this is an appeal from a decision issued without a hearing, pursuant to 29 C.F.R. � 1614.110(b), the Agency's decision is subject to de novo review by the Commission. 29 C.F.R. � 1614.405(a). See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at Chapter 9, � VI.A. (November 9, 1999) (explaining that the de novo standard of review "requires that the Commission examine the record without regard to the factual and legal determinations of the previous decision maker," and that EEOC "review the documents, statements, and testimony of record, including any timely and relevant submissions of the parties, and . . . issue its decision based on the Commission's own assessment of the record and its interpretation of the law").
After a review of the record, assuming arguendo that Complainant had established a prima facie case of discrimination, we find that the Agency has articulated legitimate, nondiscriminatory reasons for the alleged incidents. Complainant claimed that she received two threatening voice messages, via her office phone, from unidentified individuals on November 27, and December 11, 2009.2 The record indicates that upon Complainant's report of the incidents, the Agency investigated and found that the calls were not made at the Agency. The Assistant Regional Census Manager, upon learning of the incidents, immediately referred the matter to the Agency's security office and the local police for guidance. The Manager indicated that he was concerned about Complainant's safety after she reported the foregoing incidents to him. But, stated the Manager, Complainant indicated to him that "it was just a phone call and that she did not feel unsafe" and that she was appreciative of his concern. On appeal, Complainant acknowledged the foregoing conversations. The Manager indicated that Complainant's phone line was subsequently disconnected so no further message could be left on her line. All callers were required to call the office's main number and leave a message with the receptionist. There is no evidence that Complainant received any further threatening messages thereafter. There is no evidence that the alleged threatening caller(s) was an Agency employee.
Complainant also claimed that she was placed on intermittent status on June 4, 2010. The Agency stated that Complainant was originally appointed to a temporary excepted service appointment on February 4, 2008, not to exceed date of February 3, 2010, for the 2010 Decennial Census. Complainant's then supervisor indicated that Complainant's appointment was subsequently extended until June 4, 2010, at which time she was placed on intermittent status due to lack of work and continued to work in that temporary appointment until her appointment ended on September 25, 2010. The supervisor stated that this decision was based on the anticipated workload for her office. The supervisor also indicated that no other Partnership Specialists remained in her office after June, 2010. After a review of the record, we find that Complainant failed to show that she was treated less favorably than any similarly situated employee under similar circumstances. With regard to her claim of harassment, we find that Complainant failed to establish the severity of the conduct in question or that it was related to any protected basis of discrimination. Based on the foregoing, we find that Complainant has failed to show that the Agency's action was motivated by discrimination as she alleged.
CONCLUSION
Accordingly, the Agency's final decision is AFFIRMED.
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 (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 (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
10/10/12
__________________
Date
1 The record indicates that the Agency incorporated its October 14, 2011 motion for a summary judgment in its final decision.
2 The Agency erroneously indicated that there was only one voice message during the permissible time period, i.e., since November 26, 2009. However, the record clearly indicates that although a caller left a message on November 25, 2009, this message was not retrieved by Complainant until November 27, 2009. Thus, we will consider this message, along with the December 11, 2009 message, in this decision.
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0120122549
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120122549