0120182297
09-20-2018
Lashaunda G,1 Complainant, v. Peter O'Rourke, Acting Secretary, Department of Veterans Affairs, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Lashaunda G,1
Complainant,
v.
Peter O'Rourke,
Acting Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120182297
Agency No. 200P06542018102564
DECISION
Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's decision dated June 27, 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., 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 Food and Service Supervisor at the Agency's Sierra Nevada Health Care System facility in Reno, Nevada. Complainant resigned from her position which became effective on December 29, 2017.
On February 21, 2018, Complainant contacted the EEO Counselor alleging discrimination. On March 21, 2018, Complainant filed a formal complaint alleging that the Agency subjected her to discrimination on the bases of race, sex, disability, age, and reprisal for prior protected EEO activity when:
1. Beginning on or about July 2017 to October 2017, Complainant's supervisor (Chief) changed her tour of duty - no weekends off and later work hours.
2. Beginning on or about July 2017 to December 29, 2017, the Chief constantly spoke to Complainant in a condescending tone.
3. On October 12, 2017, Complainant received a hand-delivered demotion notice at home by a Human Resources employee.
4. On December 12, 2017, Complainant was forced to resign.
5. On December 27, 2017, Complainant was issued an order to return to duty.
6. On December 28, 2017, Complainant became aware management placed her in an Absence Without Approve/Authorized Leave status (AWOL) beginning December 16, 2017.
The Agency dismissed the complaint pursuant to 29 C.F.R. � 1614.107(a)(1) for raising the same claims as those raised in a prior EEO matter (Case No. 200P-0654-2017105034). The Agency indicated that Complainant had received EEO counseling on that earlier complaint in September 2017, and had been provided with a Notice of Right to File a formal complaint on November 15, 2017. However, Complainant failed to file a formal complaint at that time. As such, the Agency found that the matter raised in the instant complaint had previously been raised with the Agency. Therefore, the Agency asserted that the instant complaint was a duplicate claim as a prior matter and was dismissed pursuant to 29 C.F.R. � 1614.107(a)(1).
In the alternative, the Agency dismissed the complaint pursuant to 29 C.F.R. � 1614.107(a)(2), finding that Complainant failed to raise the claims in a timely manner with the EEO Counselor. The Agency stated that the most recent event occurred on December 29, 2017, when her resignation had been processed. Complainant contacted the EEO Counselor on February 21, 2018, outside of the 45-day time limit.
The instant appeal followed.
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R. �1614.107(a)(2) states that the Agency shall dismiss a complaint or a portion of a complaint that fails to comply with the applicable time limits contained in �1614.105, �1614.106 and �1614.204(c), unless the Agency extends the time limits in accordance with �1614.604(c). EEOC Regulation 29 C.F.R. �1614.105(a)(1) provides that an aggrieved person must initiate contact with an EEO Counselor within 45 days of the date of the matter alleged to be discriminatory or, in the case of a personnel action, within 45 days of the effective date of the action.
EEOC Regulation 29 C.F.R. �1614.105(a)(2) allows the Agency or the Commission to extend the time limit if Complainant can establish that Complainant was not aware of the time limit, that Complainant did not know and reasonably should not have known that the discriminatory matter or personnel action occurred, that despite due diligence complainant was prevented by circumstances beyond her control from contacting the EEO Counselor within the time limit, or for other reasons considered sufficient by the Agency or Commission.
Complainant does not dispute the delay in seeking EEO counseling, but argues on appeal that her attorney mistakenly instructed her to raise her discrimination claim with the Nevada Equal Rights Commission (NERC). Complainant filed a charge with NERC on November 21, 2017. Subsequently, on February 13, 2018, Complainant was informed by NERC that she needed to contact the EEO Counselor.
We are not persuaded to waive the limitation period on these grounds. The record contains evidence that Complainant was aware of the administrative EEO complaint process and the requirement to contact an Agency EEO counselor as she had previously utilized the counseling process. The Commission has consistently held that the utilization of other agency procedures, union grievances, and other remedial processes do not toll the time limit for contacting an EEO Counselor. See Ellis v. U.S. Postal Serv., EEOC Appeal No. 01992093 (Nov. 29, 2000). Therefore, we conclude that the Agency's dismissal of the complaint pursuant to 29 C.F.R. �1614.107(a)(2) was appropriate.
As we are affirming the dismissal for untimely EEO counselor contact, we do not need to address the Agency's alternative ground for dismissal.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency's final decision.
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 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. 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 20, 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.
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