0120142547
01-21-2016
Genie Y.,1 Complainant, v. Eric Fanning, Acting Secretary, Department of the Army, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Genie Y.,1
Complainant,
v.
Eric Fanning,
Acting Secretary,
Department of the Army,
Agency.
Appeal No. 0120142547
Agency No. ARAPG14APR01378
DECISION
Complainant filed a timely appeal with this Commission from the Agency's June 13, 2014 decision, 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.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Visual Information Specialist at the Agency's Directorate of Planning, Training, Mobilization and Security facility at the Aberdeen Proving Ground, Maryland.
On April 25, 2014, Complainant made EEO contact. On June 6, 2014, Complainant filed a formal complaint alleging that the Agency subjected her to discrimination on the bases of sex (female) and reprisal for prior complaint ARAPG12APR014442 claiming harassment and intimidation for protected EEO activity under Title VII of the Civil Rights Act of 1964 when:
1. In December 2013, her supervisor informed her that her work would be monitored and higher level work would be taken from her so she would be "doing only GS-09 work;"
2. In February 2013, she received a desk audit with "highly erroneous" results;
3. From 2011 - 2012, she reported the continuous, harassing behavior of a coworker to her supervisor and, when it appeared as though the incidents were not being documented, she reported the incidents to her second level supervisor;
4. On February 12, 2014, three officials from the Civilian Personnel Advisory Center refused to send her desk audit rebuttal to DoD;
5. On or around February 2013, her supervisor lied about her duties during the desk audit; and
6. On or around February 2013, she was not promoted as a result of the desk audit.
As relief, Complainant seeks promotion to a GS-12 position and "back pay for five years of working at the higher level, creating high end products (2008-2013)." See EEO Complaint.
From 2011 to 2012, Complainant reported the misconduct of a male employee (in the form or "unacceptable and unprovoked bullying) toward her and other female employees. Complainant alleged that the male employee tried to run her over with a forklift. Her supervisor called the police several days later. After additional women came forth with similar accusations, the bullying coworker was removed from the building for a period of about six months. He contacted the EEO office, asking for a Desk Audit. His Desk Audit was granted and he was promoted.
In February 2013, Complainant requested a desk audit because she believed that she was performing duties above and beyond her GS-09 position description. Shortly thereafter, her position description changed from Visual Information Specialist to Visual Information Specialist under a different PD (#AG416556). She contends that her supervisor failed to credit her work and was incorrect in his assessment of her duties, which the supervisor communicated to the desk auditor. The desk audit reflected that she was in her correct position (GS-9). Complainant was not promoted.
Complainant filed a grievance with regard to the desk audit. On February 12, 2014, three managers from the Civilian Personnel Advisory Center (CPAC) refused to send Complainant's desk audit rebuttal to the Department of Defense (DoD). Complainant states "CPAC has refused to forward her rebuttal to the proper officials in DoD." The CPAC representative told Complainant that she could not do so because "the Aggrieved was appealing her PD."
In her EEO complaint, Complainant argues that the supervisor "lied" or was mistaken when he says that Complainant does not do "original work" which would warrant a higher grade. Complainant argues that her work is equivalent to that of other women who hold a GS-11 position.
The Agency dismissed Complainant's complaint for two reasons: 1) untimely EEO contact pursuant to 29 C.F.R. � 1614.107(a)(2) and 2) failure to state a claim pursuant to 29 C.F.R. � 1614.107(a)(1). The Agency reasoned that Complainant did not initiate EEO contact until April 25, 2014, which was "well passed the 45 day timeline required to initiate a pre-complaint" for all of her claims. The Agency also dismissed the entire complaint for failure to state a claim, finding that the claim did not allege any unlawful or adverse employment action or a claim that she suffered a harm or loss due to her sex or prior activity. The Agency reasoned that its adherence to an assigned position description resulted in no employment harm.
This appeal followed.
ANALYSIS AND FINDINGS
Untimely EEO Contact
The Agency dismissed the complaint for untimely EEO counseling. 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.
In this case, the record shows that Complainant did not make EEO contact until April 25, 2014 with regard to the incidents alleged in this complaint. The most recent alleged activity was her claim that management officials refused to forward her rebuttal to the proper officials on February 12, 2014. We note that the record includes a reference to a negative "conversation" that took place on March 11, 2014, during a meeting with her supervisor. She did not allege this as an employment action in her complaint. In addition, although Complainant is alleging that she has been subjected to retaliatory harassment, she has not alleged any actual adverse personnel actions that were taken against her. The Supreme Court has held that a complainant alleging a hostile work environment will not be time barred if all acts constituting the claim are part of the same unlawful practice and at least one act falls within the filing period. See Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101 (June 10, 2002). In this case, Complainant's April 25, 2014 EEO counselor contact was not timely made with regard to any of the alleged claims.
For these reasons, we find that the Agency met its burden of establishing that Complainant's EEO contact was untimely made.
Because we conclude that the EEO contact was untimely, it is not necessary for us to address the Agency's alternative basis for dismissal, the failure to state a claim.
Accordingly, we AFFIRM the Agency's final decision.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0815)
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 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, 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 (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
January 21, 2016
__________________
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 The appeal references complaint number ARAPG12APRO01444. The Agency Decision references DA Docket Number ARAPG14APR01378, which is the subject of this appeal.
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