0120122187
10-10-2012
Katherine M. Smith, Complainant, v. Martha N. Johnson, Administrator, General Services Administration, Agency.
Katherine M. Smith,
Complainant,
v.
Martha N. Johnson,
Administrator,
General Services Administration,
Agency.
Appeal No. 0120122187
Agency No. 12-R9-PBS-KMS-07
DECISION
Complainant filed a timely appeal with this Commission from a final Agency decision (FAD) dated March 22, 2012, 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., Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
BACKGROUND
At the time of events giving rise to this complaint Complainant worked as a Management Assistant at the Agency's Public Buildings Service, Real Estate Acquisition Division in San Francisco, California. On February 17, 2012, she filed a formal complaint alleging that the Agency discriminated against her based on her race (White), national origin (Irish/German), sex (female), religion (Christianity), disability, age (51), and reprisal for prior protected EEO activity when she was not provided proper EEO counseling services by EEO Counselor 1 [this occurred around December 2011].1
The record reflects that in December 2011 Complainant initiated contact with an EEO counselor on case 2 (Agency No. 12-R9-PBS-KMS-03) alleging that in her prior EEO case 1 (Agency No. 11-R9-PBS-KMS-28) she was not properly counseled by EEO Counselor 1. In January 2012 Complainant initiated contact with an EEO counselor on case 3, the case before us. She raised a variety of claims, none about EEO Counselor 1. On February 17, 2012, the Agency mailed Complainant a Notice of Right to File a Formal Complaint of Discrimination for case 3. Complainant filed her EEO complaint on February 28, 2012, alleging the claim about Counselor 1 and no other issues.
The Agency dismissed the complaint in case 3 for failure to timely file the complaint. The Agency found that Complainant received the Notice of Right to File a Discrimination Complaint on case 2 on January 5, 2012, and did not file a formal complaint in case 2. The Agency found that Complainant could not use case 3 to file a timely complaint on case 2 on the same issue. The only documentation on when the Notice of Right to File a Formal Complaint of Discrimination on case 2 was provided to Complainant are brief references in the case 2 counselor report that the notice was issued on January 5, 2012.
The Agency also dismissed the complaint in case 3 on the grounds that the claim about EEO Counselor 1 was not raised with the EEO counselor on case 3. 29 C.F.R. � 1614.107(a)(2).2
On appeal the parties make no comment.
ANALYSIS AND FINDINGS
The regulation set forth at 29 C.F.R. � 1614.107(a)(2) requires, in pertinent part, that an agency dismiss a complaint which fails to comply with the applicable time limits contained in 29 C.F.R. � 1614.106, which, in turn, requires the filing of a formal complaint within fifteen (15) days of receiving the notice of the right to do so.
In dismissing the complaint in case 3 the Agency determined that on January 5, 2012, Complainant was issued the Notice of Right to File a Formal Complaint on case 2 and did not file a formal complaint but instead improperly used case 3 to file a formal complaint on the same issue raised in case 2. Even if we were to accept the Agency's general premise above the record contains insufficient documentation to affirm a finding that a complaint about Counselor 1's improper counseling was untimely filed. The record does not contain the Notice of Right to File a Complaint on case 2, nor does it contain any evidence of when Complainant received the notice.
We find that the Agency properly dismissed the complaint in case 3 on the grounds that it was not brought to the attention of the EEO counselor on that case and was not like or related to the matter that was brought to the attention of that EEO counselor. 29 C.F.R. � 1614.107(a)(2). The claim about EEO Counselor 1 is different in nature to the matters she raised with the EEO counselor in case 3 and occurred previously, i.e., did not grow out of the claims or making the claims in case 3.
We also find that the complaint in case 3 must be dismissed under 29 C.F.R. � 1614.107(a)(8), which requires that allegations of dissatisfaction with the processing of a previously filed complaint be dismissed. In the future if Complainant is dissatisfied with the Agency's processing of her EEO case she should notify the Agency official responsible for the complaints processing of her concerns, who then must have someone address the matter. Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO-MD-110), Chap. 5.IV.D, at 5-25 to 5-27 (November 9, 1999).
The FAD 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
October 10, 2012
__________________
Date
1 The Agency defined the complaint as Complainant not being provided counseling services. A close review of the record shows Complainant alleged she was not properly counseled.
2 The formal complaint form has a basis of discrimination section where a Complainant can check off boxes to indicate the alleged bases of discrimination. For the basis of sex Complainant checked off a box for female and a box for sexual harassment. She did not raise sexual harassment in counseling, nor has she provided any examples thereof. The Agency dismissed the sexual harassment matter on the grounds that Complainant did not raise it with the EEO counselor. We find that Complainant did not intend to raise sexual harassment as an issue. Rather she was alleging sex discrimination when EEO Counselor 1 did not properly counsel her. The EEO counselor's report on case 2 indicates that Complainant believed EEO Counselor 1 did not provide proper counseling in case 1 because she engaged in "deception, misguidance, misinformation" and was "deceitful, unethical, obnoxious, and unprofessional."
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0120122187
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120122187