0120091438
06-25-2009
Kim H. Torrone, Complainant, v. Pete Geren, Secretary, Department of the Army, Agency.
Kim H. Torrone,
Complainant,
v.
Pete Geren,
Secretary,
Department of the Army,
Agency.
Appeal No. 0120091438
Agency No. ARUSAR08DEC04949
DECISION
Complainant filed a timely appeal with this Commission from the agency's
final decision dated January 15, 2009, 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.
Upon review, the Commission finds that complainant's complaint was
properly dismissed pursuant to 29 C.F.R. � 1614.107(a)(2).
During the relevant period, complainant was a Bartender at a recreational
golf course of the agency. In a letter dated November 25, 2008,
complainant initiated EEO contact1 alleging that the agency subjected
her to a hostile work environment on the bases of race (Asian), national
origin (Thai), and reprisal for prior protected EEO activity when (a)
in May or June 2008, an Assistant Business Manager (S1) disrespected
complainant by changing lounge prices without a good reason and stating
in a "physically threatening manner" that complainant will not have a
job when she takes over, (b) on numerous occasions, management failed to
announce vacant managerial positions and filled them non-competitively,
(c) on October 6, 2008, S1 falsely accused complainant of theft, (d)
around October 7, 2008, an Activity Director and an Operations Chief
issued complainant a four day suspension based on S1's false allegations
and failed to take appropriate action once complainant was cleared
of the theft allegation, and (e) in 2002, S1 accused complainant of
sexually harassing her in a law suit, but complainant did not learn of
the allegation until November 2, 2008.
In its January 15 final decision, the agency dismissed (a) - (d)
pursuant to 29 C.F.R. � 1614.107(a)(2) for untimely EEO contact and (e)
pursuant to 29 C.F.R. � 1614.107(a)(1) for failure to state a claim.
Specifically, the agency stated that matters occurring prior to October
11, 2008 fall outside of the 45-day statutory time-frame and that the
agency, not complainant, is cited as a defendant in S1's civil action and
the Commission does not have jurisdiction over the matter. The instant
appeal from complainant followed.
On appeal, complainant stated she will not dispute the dismissal of
(e) because she noted it only to support her allegation of retaliation.
Further, regarding (a) - (d), complainant stated that management failed
to properly display EEO posters or to provide her EEO training during the
preceding six to eight years, she was mislead to believe that the theft
accusation had to be handled under the negotiated grievance process,
and she believed that S1's superiors were best equipped to handle the
matters with S1. Complainant stated that the latter two options were
futile so she decided to locate an EEO office. Complainant stated
that she sent a notice of complaint and designation of representative
to an address provided by Human Resources on November 25, 2008, but
that correspondence was undeliverable so she made additional contact in
early-to-mid December 2008. Complainant stated that her delay was de
minimis and that the statutory time-frame should be extended.
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. As to
(a) - (d), the record discloses that complainant initiated contact with
an EEO Counselor on November 25, 2008 at the earliest, which is outside
the forty-five (45) day limitation period required by 29 C.F.R. ��
1614.105(a)(1) & .107(a)(2). Further, we find that complainant failed
to present persuasive arguments to warrant waiver of the regulatory
time-frame. We note that we will not address the dismissal of (e) as,
based on complainant's appeal, it is not an issue. Based on the above,
we AFFIRM the agency's dismissal of (a) - (d) as a complaint.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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), 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 (S0408)
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 (Z1008)
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 25, 2009
__________________
Date
1 We note that the final agency decision indicates November 25, but the
EEO Counselor's Report indicates December 5, 2008 as the date of initial
contact. We have indicated the earlier of the two dates is consistent
with the initial correspondence from complainant and the final decision.
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0120091438
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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