0120131647
06-28-2013
Jessica Quigley, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs (Veterans Health Administration), Agency.
Jessica Quigley,
Complainant,
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs
(Veterans Health Administration),
Agency.
Appeal No. 0120131647
Agency No. 200H06462012104095
DECISION
Complainant filed a timely appeal with this Commission from the Agency's final decision dated March 20, 2013 dismissing a formal 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. Upon review, the Commission finds that the complaint was properly dismissed pursuant to 29 C.F.R. � 1614.107(a)(2), for untimely EEO Counselor contact.
BACKGROUND
In her complaint, Complainant described a series of incidents that occurred from September 2011 to June 11, 2012, allegedly in response to her disclosure of her sexual orientation to her supervisor. Complainant claimed that she was placed on multiple Performance Improvement Plans and received multiple threatening emails from her supervisor that caused her mental anguish and to feel bullied, resulting in her decision to transfer to a different position at a lower compensation level in March 2012. On June 11, 2012, Complainant's previous supervisor sent an email to the staff detailing Complainant's Performance Improvement Plan, which Complainant described as a breach of her privacy. Thereafter, Complainant contacted the EEO counselor on July 27, 2012 alleging discrimination based on her sexual orientation and harassment/hostile work environment. The complaint was dismissed as untimely because the EEO counselor contact occurred 46 days after the last event.
In her appeal, Complainant explains that her reason for waiting beyond the 45-day time period to contact an EEO counselor was due to an attempt to first contact her union representative, to follow the "chain of command" by contacting the director's office at the Agency regarding her issue, and a fear of reprisal from her supervisor. Additionally, Complainant asks that the occurrence of a Federal holiday on July 4, 2012 during the 45-day time period allow for the one day delay in her initiation of EEO contact. In response to complainant's appeal, the agency argues that Complainant failed to make a designation of union representation during the informal and formal complaint process, and that the use of an alternate process does not toll the time limit for contacting an EEO Counselor. The Agency further argues that Complainant has failed to state a claim pursuant to 29 C.F.R. 1614.107(a)(1) because sexual orientation is not covered by Title VII, and Complainant's claim is undisputedly based on her sexual orientation.
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R. � 1614.105(a)(1) requires that complaints of discrimination 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 record establishes that the latest event that made up part of Complainant's claim of harassment/hostile work environment occurred on June 11, 2012, but she did not initiate contact with an EEO counselor until July 27, 2012, one day beyond the 45-day limitation period. Complainant offers no evidence and makes no argument alleging she was unaware of the time limits regarding the EEO process.
The Commission has consistently held that internal appeals or informal efforts to challenge an agency's adverse action and/or the filing of a grievance do not toll the running of the time limit to contact an EEO Counselor. See Hosford v. Department of Veterans Affairs, EEOC Request No. 05890038 (June 9, 1989); Miller v. United States Postal Service, EEOC Request No. 05880835 (February 2, 1989). Complainant's attempt to contact her union representative and decision to follow an internal process to address her concerns are therefore not sufficient reasons for failing to timely contact an EEO counselor.
Complainant further claims she delayed contacting an EEO counselor because she feared losing her position as Nurse Manager. However, the Commission has repeatedly held that fear of reprisal is an insufficient justification for not contacting an EEO Counselor in a timely manner. See Duncan v. Department of Veterans Affairs, EEOC Request No. 05970315 (July 10, 1998); Kovarik v. Department of Defense, EEOC Request No. 05930898 (December 9, 1993).
Complainant's final argument is that the 45-day time period should have been extended because July 4, 2012 was a Federal holiday. In accordance with 29 C.F.R. 1614.604(d), the time period is extended to include the next business day if the last day of the time period falls on a Saturday, Sunday or Federal holiday. In this instance, a Federal holiday fell in the middle of the 45-day time period, not on the last day, and therefore the time period is not extended to include the next business day.
Because we affirm the Agency's dismissal of the instant complaint for untimely EEO Counselor contact, we find it unnecessary to address it on alternative procedural grounds (failure to state a claim).
CONCLUSION
Accordingly, the Agency's final 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 (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
June 28, 2013
Date
2
0120131647
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120131647