0120181964
09-18-2018
Josefina P,1 Complainant, v. Ryan K. Zinke, Secretary, Department of the Interior (Bureau of Indian Affairs), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Josefina P,1
Complainant,
v.
Ryan K. Zinke,
Secretary,
Department of the Interior
(Bureau of Indian Affairs),
Agency.
Appeal No. 0120181964
Agency No. DOIBIA180087
DECISION
Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's decision dated April 18, 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.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Superintendent, GS-14, at the Agency's Southern Plains Regional Office, Bureau of Indian Affairs facility in Anadarko, Oklahoma.
Complainant made contact with the EEO Counselor on November 9, 2017. On February 28, 2018, Complainant filed a formal complaint alleging that the Agency subjected her to discrimination on the basis of reprisal for prior protected EEO activity under Title VII when, on unspecified dates, she was "denied due process, never received a statement of allegations of misconduct leading to reassignment, adverse action, disparate treatment, relocation, ongoing harassment and retaliation." The Agency characterized her claims, as alleging discrimination, based on her prior EEO complaint (Agency Case No. DOI-BIA-18-0087),2 when:
1. On an unspecified date, the Agency denied Complainant due process;
2. On an unspecified date, the Agency subjected her to an unspecified adverse action;
3. On an unspecified date, the Agency failed to give her a statement of any misconduct leading to her relocation or reassignment; and
4. Or about June 12, 2017, the Agency forced her relocation or reassignment to the Southern Plains Regional Office.
Agency Decision
The Agency dismissed her complaint, because Complainant failed to comply with the applicable time limits. The Agency reasoned that the most recent alleged event was her reassignment on June 12, 2017. Her contact with an EEO counselor occurred on November 9, 2017, which was not within the 45-day time limit for EEO contact. The Agency considered the reason Complainant attributed for her delay. Complainant stated that she had been attempting to address the matter at the local level, but she was unsuccessful. The Agency also found that Complainant was familiar with the regulations, because she had filed three other formal EEO complaints. The Agency also dismissed the complaint because it concluded that Complainant had abandoned her other claims and, therefore, failed to state a claim regarding the remainder of her claims. This appeal followed.
CONTENTIONS ON APPEAL
On appeal, Complainant states that she would like to file another EEO complaint for ongoing harassment. She states that she contacted an Agency official on October 17, 2017 to report the harassment. She also offered other reasons for her delay in contacting an EEO counselor. Specifically, she stated that, on February 1, 2018, her counsel withdrew and that she had been struggling with the care of her sick mother and that her sister had been diagnosed, on March 2, 2018, with Stage 3 Breast Cancer.
The Agency had not received Complainant's statement on appeal and says that its decision should be affirmed.
ANALYSIS AND FINDINGS
Untimely EEO 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.
In this case, the record discloses that the alleged discriminatory event occurred on June 12, 2017, but Complainant did not initiate contact with an EEO Counselor until November 9, 2017, which is beyond the forty-five (45) day limitation period. Even assuming that Complainant made contact in October of 2017, that would not render the EEO contact timely made for the issues alleged in this case.
On appeal, Complainant has presented no persuasive arguments or evidence warranting an extension of the time limit for initiating EEO Counselor contact. We note that the withdrawal of her counsel and her sister's diagnoses occurred after the expiration of the time for her to have made timely contact with an EEO counselor. She also failed to identify a more recent like or related incident.
For these reasons, we find that the Agency met its burden of establishing that Complainant's contact was untimely made. Upon review, the Commission finds that Complainant's complaint was properly dismissed pursuant to 29 C.F.R. � 1614.107(a)(2), for untimely EEO Counselor contact.
CONCLUSION
Accordingly, we AFFIRM the Agency's final decision dismissing Complainant's complaint.
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 tends 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 18, 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 We note that DOI-BIA-18-0087 is the same number of her current EEOC complaint and no other prior EEOC complaint number is referenced. Complainant states that she made contact on October 17, 2017, in follow-up to her prior complaint.
---------------
------------------------------------------------------------
---------------
------------------------------------------------------------
2
0120181964
5
0120181964