0120181946
09-19-2018
Britany N.,1 Complainant, v. Ajit V. Pai, Chairman, Federal Communications Commission, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Britany N.,1
Complainant,
v.
Ajit V. Pai,
Chairman,
Federal Communications Commission,
Agency.
Appeal No. 0120181946
Agency No. FCC-EEO-18-08 & FCC-EEO-18-12
DECISION
On May 25, 2018, Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from a final Agency decision (FAD) dated April 24, 2018, dismissing her 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., Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
BACKGROUND
At the time of events giving rise to this complaint, Complainant was employed by the Agency as a Senior Electronics Engineer, GS-15, in the Office of Engineering and Technology, and as of January 2016, she became a retiree.
On January 16, 2018, Complainant filed an equal employment opportunity (EEO) complaint alleging that the Agency subjected her to discrimination, as applicable, based on her race (Asian), national origin (China), sex (female), disability, age (over 60), and reprisal for prior EEO activity under Title VII (opposition activity around 2012 - complaining to an Agency Chair and an Agency Commissioner that minorities and women were not being promoted to supervisory positions) when:
1. She realized in 2012 that since 2004, when she arrived in the Office of Engineering and Technology, that minorities and women, including herself, were not being promoted into supervisory positions;
2. The Office of Engineering and Technology promoted a less qualified African-American male into a supervisory Branch Chief position;
3. Starting around 2012, her cash awards decreased, and then went to zero;
4. In 2014, her coworker, who was noncompetitively promoted to GS-15 in the Spring of 2014, was noncompetitively promoted to Acting Branch Chief around August 2014 (becoming her supervisor), and to Branch Chief in the Fall of 2014, even though she and others had more experience;
5. In April 2014, she was assigned to study and write a report on wireless microphones, and she was placed on a Performance Improvement Plan in November 2014;
6. In February 2015, she was denied a step increase; and
7. In response to her question on when the time limit to file an appeal to the EEOC began to run from a prior FAD dated November 21, 2017, the Agency's EEO office advised November 24, 2017.2
The Agency dismissed issues 1 - 6 for failure to timely initiate EEO counseling. It reasoned that Complainant initiated EEO counseling on November 2, 2017, beyond the 45-calendar day time limit. The Agency also dismissed the second part of issue 5 and issue 6 because they were the basis of a civil action filed in a United States District Court and were adjudicated by the Court. The Agency dismissed issue 7 for failure to state a claim. The instant appeal followed.
ANALYSIS AND FINDINGS
An aggrieved person must seek EEO counseling within 45 days of the date of the alleged discriminatory action, or in the case of a personnel action, within 45 days of the effective date of the action. 29 C.F.R. � 1614.105(a)(1) & .107(a)(2).
Complainant initiated EEO counseling on November 2, 2017. She has not provided adequate justification to extend the time limit to initiate EEO counseling on issues 1 - 6. These incidents occurred anywhere from around two years (when Complainant retired) to five or more years before she initiated EEO counseling.3
EEOC Regulation 29 C.F.R. � 1614.107(8) requires the dismissal of a claim that alleges dissatisfaction with the processing of a previously filed complaint. Applying this regulation, issue 7 is dismissed.
The FAD is AFFIRMED.
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 (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 (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
September 19, 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 To more accurately capture Complainant's claims, we have redefined her complaint herein.
3 As we affirm the dismissal of issues 1 - 6 for untimely EEO counseling, we need not address the Agency's other reasons for dismissing the second part of issue 5, and issue 6.
---------------
------------------------------------------------------------
---------------
------------------------------------------------------------
2
0120181946
4
0120181946