0120152741
09-07-2016
Gilda M.,1 Complainant, v. Tom J. Vilsack, Secretary, Department of Agriculture (Office of the Chief Financial Officer), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Gilda M.,1
Complainant,
v.
Tom J. Vilsack,
Secretary,
Department of Agriculture
(Office of the Chief Financial Officer),
Agency.
Appeal No. 0120152741
Agency No. OCFO-2015-00405
DECISION
Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's final decision dated August 14, 2015, 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
During the period at issue, Complainant worked as a Human Resources Specialist at the Agency's Government Employee Services Division in New Orleans, Louisiana.
On June 2, 2015, Complainant filed a formal EEO complaint alleging that the Agency subjected her to discrimination on the basis of reprisal for prior EEO activity when:
1. on November 10, 2014, she received a "Fully Successful" rating on her annual performance appraisal; and
2. on February 5, 2015, during a meeting to correct her performance appraisal rating, her supervisor failed to acknowledge that he ignored critical information in her accomplishments report and did not have meaningful dialogue with her about the matter.
In its August 14, 2015 final decision, the Agency dismissed claim 1 on the grounds of untimely EEO Counselor contact, pursuant to 29 C.F.R. � 1614.107(a)(2). The Agency determined that Complainant's initial EEO Counselor contact was on March 5, 2015, which it found to be beyond the 45-day limitation period.
Further, the Agency dismissed the second allegation in the complaint, pursuant to 29 C.F.R. � 1614.107(a)(1), for failure to state a claim, finding that Complainant was not aggrieved.
The instant appeal followed.
ANALYSIS AND FINDINGS
Untimely EEO Counselor Contact
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.
The Agency claims that Complainant's EEO counselor contact regarding her November 2014 performance rating was on March 5, 2015, well beyond the 45-day limitation period. Complainant, however, argues that she raised this allegation with the Agency's EEO office in an email dated November 12, 2014. The record shows that the Agency interpreted this email as a request to amend a previously filed EEO complaint (OCFO-2014-00282). However, since this complaint had already been investigated and was pending before an EEOC Administrative Judge (AJ), the Agency informed Complainant, by letter addressed to her attorney dated December 4, 2014, that it could not amend the complaint because it was pending a hearing. Therefore, Complainant was advised with either file a motion to amend with the AJ or to contact an Agency EEO counselor (contact information was provided) within 15 days to initiate a new complaint. The December 4 letter went on to state that, "any issue raised with the Counselor [if Complainant elected counseling for a new complaint] within 45 days prior to . . . November 12, 2014 . . . will be considered timely counseled." However, the record provides no indication that Complainant or her attorney contacted an EEO counselor or anyone else at the Agency within 15 days of receipt of this letter.
On January 13, 2015, and again on January 30, 2015, Complainant renewed her request that the Agency amend her prior complaint, after she had appealed her performance rating to an internal administrative board, which the Agency represents ruled in her favor. By letter from the Agency's EEO office dated March 4, 2015, she was again advised that she needed to either file a motion to amend with the AJ assigned to her prior EEO complaint, or contact an EEO counselor within 15 days to start a new complaint. She was further advised that the Agency would consider January 13, 2015, as the date of initial counselor contact. She contacted an EEO counselor the next day.
On appeal, Complainant argues that her November 12, 2014 request to amend her complaint should be considered her initial EEO counselor contact concerning her performance rating. The Agency initially agreed with her and informed her in writing that if she contacted an EEO counselor within 15 days of receipt of its letter, her contact would be considered timely. That would have been the case, except that there is no indication that she made this contact within the 15-day time period provided by the Agency.
Instead, Complainant did not contact the Agency again until January 13, 2015, 64 days after she received her performance rating. Once a complainant has abandoned an informal complaint, absent a showing of coercion, the complainant may not reactivate the EEO process by filing a new complaint on the same issue. See Allen v. Department of Defense, EEOC Request No. 05940168 (May 25, 1995). It appears that Complainant delayed raising the matter again until she received the results of her internal administrative appeal of her rating. However, the Commission has consistently held that the utilization of agency procedures, union grievances, and other remedial processes does not toll the time limit for contacting an EEO counselor. See Ellis v. United States Postal Service, EEOC Appeal No. 01992093 (November 29, 2000).
As such, we agree with the Agency that Complainant initially abandoned her timely contact with an EEO counselor concerning her November 2014 performance rating and then tried to renew counselor contact well beyond the 45-day limitation period. As such, her claim was appropriately dismissed.
Failure to State a Claim
We find that Complainant's additional allegation concerning her February 2015 meeting with her supervisor about her November 2014 performance rating was also properly dismissed. First, a fair reading of the allegation makes it clear that it is inextricably tied to the performance rating itself, which has already been dismissed. Moreover, while Complainant attempts to cast it as part of a larger ongoing harassment claim, she was not provided any allegations to support such a claim. Accordingly, we concur with the Agency that this allegation, without more, fails to state a claim and was properly dismissed pursuant to 29 C.F.R. � 1614.107(a)(1).
CONCLUSION
Accordingly, for the reasons stated above, the Agency's decision dismissing Complainant's complaint 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 (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 7, 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.
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