0120152262
02-03-2016
Jutta A.,1 Complainant, v. John M. McHugh, Secretary, Department of the Army, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Jutta A.,1
Complainant,
v.
John M. McHugh,
Secretary,
Department of the Army,
Agency.
Appeal No. 0120152262
Agency No. ARBELVOIRAUG031615
DECISION
Complainant filed a timely appeal with this Commission from the Agency's corrected final decision dated June 30, 2015, 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. and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
BACKGROUND
During the period at issue, Complainant worked as an Administrative Support Assistant at the Agency's Intelligence and Security Command in Fort Belvoir, Virginia.
On April 16, 2015, Complainant filed the instant formal complaint.
The Agency framed Complainant's claim as follows:
Complainant alleged that the Agency subjected her to discrimination on the bases of race and sex.
On May 22, 2015, the Agency issued a final decision dismissing the formal complaint on the grounds of untimely EEO Counselor contact, pursuant to 29 C.F.R. � 1614.107(a)(2). The Agency determined that Complainant had initiated EEO Counselor contact on February 25, 2015, which it determined was more than forty-five days after the last alleged discriminatory event addressed above. On June 30, 2015, the Agency issued a new final decision which noted the corrected agency case number.
In response to Complainant's appeal, the Agency stated that while its corrected June 30, 2015 final decision was "poorly framed, it did properly dismiss the complaint for failure to file a timely complaint of discrimination which is in accordance with 29 C.F.R. � 1614.107(a)(2)."
Further, the Agency stated that while the corrected June 30, 2015 final decision does not identify any specific claims, the Agency had framed Complainant's allegations in her formal complaint to assert the following claims that she was discriminated against on the bases of race, sex and age when:
a. in May 2006, she was allegedly accused by an unidentified co-worker of misappropriating funds from her office;
b. in June 2008, her supervisor made an observation that she was reviewing a pornographic website at her desk;
c. in August 2009, she was allegedly accused by an unidentified personnel of taking missing supplies for her own personal use;
d. in May 2010, she was allegedly accused of an unidentified co-worker of downloading pornographic material;
e. in October 2012, her receipt of a Department of Defense EMALL flyer that was found on the office fax machine was allegedly reported by unidentified personnel to the security office;
f. in March 2013, two unidentified co-workers allegedly accused her of downloading pornographic material;
g. in March 2014, an unidentified male co-worker offered her a ride to her car and when she declined he stated he thought she was "working" on the street; and
h. in August 2014, she alleged that she came under scrutiny by unidentified individuals when office supplies were discovered missing.
In its determination, the Agency found that Complainant initiated EEO Counselor contact on February 25, 2015, and that the EEO contact was untimely raised. The Agency found that the record reflects the following events relating to Complainant correspondence with EEO officials, which preceded the February 2015 EEO contact date. On September 26, 2014, Complainant sent an email to her supervisory chain, the EEO Manager and Affirmative Employment Program Manager (Manager). Therein, Complainant stated that she was subjected to a hostile work environment. On September 29, 2014, Complainant met with the Manager who informed her that she needed to contact the EEO office, and advised her of the time period to file an EEO complaint. On October 6, 2014, Complainant was again advised of the EEO complaint process in which she acknowledged on October 9, 2014. Complainant made email contact with the EEO office on October 14, 2014.
Further, the Agency noted that in November 2014, Complainant met with the EEO Specialist but would not provide any information concerning her claims. Moreover, Complainant ultimately indicated that she wanted to await a command climate survey before proceeding with the EEO complaint process. On December 10, 2014, Complainant forwarded an email to the EEO Specialist concerning the command climate survey. The Agency noted that it was not until January 13, 2015, when Complainant again contacted the EEO Specialist stating "I would like to move forward with the EEO complaint I submitted to you." (emphasis added). The EEO Specialist responded to Complainant on February 19, 2015 stating that it was her understanding that Complainant was awaiting of the command climate survey to initiate the EEO complaint process.
In support of its assertions, the Agency submitted a copy of the EEO Specialist's declaration dated August 3, 2015. Therein, the EEO Specialist stated that she clearly discussed the 45-day limitation period when she met with Complainant in November 2014 and that Complainant indicated her desire to review the results of the command climate survey before proceeding with the EEO complaint process. Specifically, the EEO Specialist stated that when she met with Complainant in November 2014, Complainant stated that she was informed by her co-workers "that derogatory comments were made about her. She stated that she was uncomfortable working around [employee] and other unidentified staff members. I explained to [Complainant] that, if she wanted to file a complaint, she would need to tell me the individuals, although she asserted they were credible sources. I again explained to her how the EEO complaint process works...[Complainant] then noted that her command was conducting a climate survey and she would wait to see if any actions would be taken once it was conducted before she would file a complaint (emphasis added)."
The instant appeal followed.
ANALYSIS AND FINDINGS
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 personnel action, within forty-five (45) days of the effective date of the action. The Commission has adopted a "reasonable suspicion" standard (as opposed to a "supportive facts" standard) to determine when the forty-five (45) day limitation period is triggered. See Howard v. Department of the Navy, EEOC Request No. 05970852 (February 11, 1999). Thus, the time limitation is not triggered until a Complainant reasonably suspects discrimination, but before all the facts that support a charge of discrimination have become apparent.
EEOC Regulations provide that the agency or the Commission shall extend the time limits when the individual shows that she was not notified of the time limits and was not otherwise aware of them, that she did not know and reasonably should not have known that the discriminatory matter or personnel action occurred, that despite due diligence she was prevented by circumstances beyond his control from contacting the Counselor within the time limits, or for other reasons considered sufficient by the agency or the Commission.
The alleged discriminatory events occurred from May 2006 to August 2014. The Agency identified the initial EEO contact date as February 25, 2015. However, we find that the record supports an initial EEO contact date of January 13, 2015, which we find is nevertheless well beyond the 45-day limitation period. As we outlined above, we note various correspondence with Agency EEO officials prior to January 2015. Specifically, we note that on Friday, September 26, 2014, Complainant sent an email to her supervisory chain and the Manager stating that she was subjected to a hostile work environment. The Manager responded to Complainant's email stating that she was available to meet with Complainant that day. On Monday, September 28, 2014, Complainant responded to the Manager's email stating that she had to leave work early last Friday, September 26, 2015, but would like to meet with her. In her affidavit, the Manager stated that when they met, they discussed Complainant's "overall concerns and I explained that if she wanted to pursue her complaint she would have to contact the Fort Belvoir EEO office. I specifically noted that speaking with me did not constitute filing a complaint. I also informed her that there is a limited period to file a complaint and it must be initiated within 45 days of the alleged discriminatory act."
The Manager stated that on October 6, 2014, she sent a follow up email to Complainant that emphasized the requisite time period for initiating EEO contact. The record contains a copy of the email correspondence dated October 6 and 9, 2013 between the Manager and Complainant. In her October 9, 2013 response, Complainant stated "I have not decided which endeavor I will choose right now, I know I have a very limited amount of time to make a decision...I appreciate your patience and assistance my decision will be forth coming soon." The Manager stated that while she was aware that on October 14, 2014, Complainant sent an email to the Fort Belvoir EEO office, Complainant met with the EEO Specialist on or about November 6 or 7, 2014.
The record contains a copy of the EEO Specialist's affidavit. Therein, the EEO Specialist stated that on October 14, 2014, she received an email from Complainant stating that the Manager referred her to the Fort Belvoir EEO office. The EEO Specialist stated that the next day, October 15, 2015, Complainant sent another detailed email with 5 attachments. The EEO Specialist stated "because both [Complainant] and I had sick leave during this period, a meeting was not held until the first week of November. On or about November 6, 2014, I met with [Complainant]...I explained to [Complainant] that if she wanted to file a complaint, she would need to tell me the individuals who had direct knowledge of her allegations. She would not give me any names of these individuals, although she asserted that they were very credible sources." The EEO Specialist stated that she again explained to Complainant how the EEO complaint process works and that if she wanted to go forth with a complaint she would need to provide additional information but she would not provide any other information. The EEO Specialist stated that Complainant stated that her command was conducting a climate survey and preferred to wait to see if any action would taken once it was completed before filing a complaint.
Further, the EEO Specialist stated that on January 13, 2015, Complainant sent her an email and "was apparently under the impression the EEO Office was conducting some type of investigation...on February 25, 2015, I met with [Complainant] and again explained the EEO process to her and she was given her rights and responsibilities and agreed to participate in mediation to resolve her issues." The EEO Specialist stated that mediation was conducted on March 31, 2015, which did not resolve Complainant's concerns, and thereafter, she was issued a Notice of the Right to File a Formal Complaint.
Complainant had or should have had a reasonable suspicion of discrimination regarding her claim more than 45 days prior to her initial contact with an EEO Counselor. A complainant satisfies the criterion of counselor contact by (a) contacting an agency official logically connected to the EEO complaint process, even if that official is not an EEO Counselor and (b) by exhibiting an intent to begin the EEO process. See Floyd v. National Guard Bureau, EEOC Request No. 05890086 (June 22, 1989); Dumaquindin v. Department of the Navy, EEOC Appeal No. 01954218 (April 1, 1996).
We note that Complainant met the criterion for EEO Counselor contact only on January 13, 2015. Specifically, it was only on January 13, 2015, when Complainant contacted the EEO Counselor and stated that "I would like to move forward with the EEO complaint I submitted to you." We find that the January 13, 2015 date to be Complainant's initial EEO Counselor date.
Complainant has not provided sufficient justification for extending or tolling the time limit. On appeal, Complainant did not present persuasive arguments or evidence warranting an extension of the time limit for initiating EEO Counselor contact. See 29 C.F.R. � 1614.604(c).
Moreover, we note that the record reflects that Complainant acknowledged she was aware of the 45-day limitation period but elected to wait for the results of the command climate survey before proceeding with the EEO complaint process. Complainant's initial attempt to resolve the issue through the Agency procedure does not excuse an untimely EEO Counselor contact. The Commission has consistently held that use 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).
The Agency's final decision dismissing Complainant's formal complaint for the reason stated herein is AFFIRMED.2
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
February 3, 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 Because we affirm the Agency's final decision to dismiss the instant formal complaint for the reason stated herein, we find it unnecessary to address alternative dismissal grounds (i.e. failure to state a claim).
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