0120093358
12-10-2009
Elba C. Arrocha, Complainant, v. Janet Napolitano, Secretary, Department of Homeland Security, Agency.
Elba C. Arrocha,
Complainant,
v.
Janet Napolitano,
Secretary,
Department of Homeland Security,
Agency.
Appeal No. 0120093358
Agency No. HS-07-FEMA-002627
Hearing No. 570-2009-00548X
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's
appeal from the agency's July 7, 2009 final order concerning an equal
employment opportunity (EEO) complaint claiming 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.
During the period at issue, complainant was employed as a Disaster
Assistance Employee, GS-9, at the agency's Finance Office, Federal
Emergency Management Agency in Washington D.C.
On October 22, 2007, complainant filed the instant formal complaint.
Therein, complainant claimed that she was subjected to discrimination
on the bases of race, national origin, and in reprisal for prior EEO
activity when:
1. on October 4, 2004, management was rude to her when they told her to
"just be invisible and disappear;"
2. on October 23, 2004, she was terminated for a poor performance
evaluation; and
3. on July 26, 2007, she felt that the Finance Office harassed her
when they notified her of an outstanding balance on her Citibank Travel
Card that she had previously paid. Complainant was later told that the
balance was paid. 1
On March 24, 2008, the agency issued a partial dismissal. Therein, the
agency accepted claim 3 for investigation. However, the agency dismissed
claims 1 - 2 on the grounds of untimely EEO Counselor contact, pursuant
to 29 C.F.R. � 1614.107(a)(2). Specifically, the agency determined
that complainant initiated EEO Counselor contact on August 22, 2007,
which was beyond the forty-five-day limitation period in regard to the
matters raised in both claims.
At the conclusion of investigation concerning claim 3, complainant
received a copy of the investigative report and requested a hearing
before an EEOC Administrative Judge (AJ). On May 29, 2009, the
AJ issued a Notice of Intent to issue a decision without a hearing,
allowing parties to file written response to the Notice. The record
reflects that complainant responded and the agency failed to respond.
On June 22, 2009, the AJ issued a decision dismissing claim 3 for failure
to state a claim, pursuant to 29 C.F.R. � 1614.107(a)(1). Specifically,
the AJ determined that complainant failed to demonstrate that she suffered
harm to a term, condition or privilege of her employment. The AJ further
determined that the alleged acts did not rise to the level of harassment.
The AJ also noted that the agency properly dismissed claims 1 - 2 on
the grounds of untimely EEO Counselor contact.
The agency issued a final order dated July 7, 2009, implementing the
AJ's dismissal of claim 3 for failure to state a claim. The instant
appeal followed.
On appeal, complainant argues that her EEO Counselor contact with regard
to claims 1 and 2 should be deemed timely. Complainant states that
within 45 days of her termination in Florida, she met with the Office of
General Counsel (OGC) and submitted documentation "with the clear intent
to initiate an EEO complaint. However, the person with whom I met and to
whom the Orlando DFO (District Field Office) sent me to contact once in
Washington [Director of the Alternative Dispute Resolution (ADR) Office
(D1)] has since denied ever meeting with me or receiving, directly
from me this documentation at early stage of my efforts to initiate
the complaint." Complainant further states "I am certain that FEMA's
building security records will show that I signed in to visit with [D1]
that day in early January 2005."
Finally, complainant argues that her meeting with the OGC "(which they
denied ever took place), and the guidance by FEMA officials in Orlando
encouraging me to consult with the General Counsel instead of with
the EEO office, violated agency procedures because it misdirected my
complaint and denied me the right to submit a timely document and file
appropriately with the EEO office of FEMA."
Claims 1 -2
In its March 24, 2008 partial dismissal, the agency dismissed claims 1
- 2 pursuant to 29 C.F.R. � 1614.107(a)(2), on the grounds of untimely
EEO Counselor contact. The agency determined that complainant's initial
EEO Counselor contact occurred on August 22, 2007, which it found to be
beyond the 45-day limitation period.
On appeal, complainant has presented no persuasive arguments or evidence
warranting an extension of the time limit for initiating EEO Counselor
contact. The Commission has consistently held that a complainant must
act with due diligence in the pursuit of her claim or the doctrine
of laches may apply. See Becker v. United States Postal Serv., EEOC
Appeal No. 01A45028 (November 18, 2004) (finding that the doctrine of
laches applied when complainant waited over two years from the date of
the alleged discriminatory events before contacting an EEO Counselor);
O'Dell v. Department of Health and Human Serv., EEOC Request No. 05901130
(December 27, 1990). The doctrine of laches is an equitable remedy under
which an individual's failure to pursue diligently her course of action
could bar her claim. To the extent that complainant made attempts to
pursue the EEO complaint process subsequent to the events identified in
claims 1 and 2, it appears that she abandoned them for years. Therefore,
complainant's EEO contact in August 2007 appears to be an attempt to
resurrect those abandoned claims. We note, for example, that complainant
asserts that she met with an agency official in "early January 2005,"
which would have been over two and one-half years before her August 22,
2007 EEO Counselor contact. We therefore determine that the doctrine of
laches is applicable to this situation. The agency's dismissal of claims
1 - 2 on the grounds of untimely EEO Counselor contact is AFFIRMED.
Claim 3
The regulation set forth at 29 C.F.R. � 1614.107(a)(1) provides, in
relevant part, that an agency shall dismiss a complaint that fails to
state a claim. An agency shall accept a complaint from any aggrieved
employee or applicant for employment who believes that he or she has been
discriminated against by that agency because of race, color, religion,
sex, national origin, age or disabling condition. 29 C.F.R. �� 1614.103,
.106(a). The Commission's federal sector case precedent has long defined
an "aggrieved employee" as one who suffers a present harm or loss with
respect to a term, condition, or privilege of employment for which
there is a remedy. Diaz v. Department of the Air Force, EEOC Request
No. 05931049 (April 21, 1994).
Complainant has not alleged a personal loss or harm regarding a term,
condition or privilege of her employment. The events described
by complainant are not sufficiently severe or pervasive to state
a claim of discriminatory harassment. We find that the AJ properly
dismissed claim 3 for failure to state a claim. Moreover, the alleged
incidents are not sufficiently severe or pervasive to state a claim
of discriminatory harassment. See Cobb v. Department of the Treasury,
EEOC Request No. 05970077 (March 13, 1997).
The agency's final order implementing the AJ's dismissal of claim 3 for
failure to state a claim is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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), 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 (S0408)
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 (Z1008)
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
December 10, 2009
__________________
Date
1 For ease of reference, the Commission has numbered complainant's claims
as claims 1 - 3.
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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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