0120111518
07-01-2011
Leslie A. Ball, Complainant, v. Ray Mabus, Secretary, Department of the Navy, Agency.
Leslie A. Ball,
Complainant,
v.
Ray Mabus,
Secretary,
Department of the Navy,
Agency.
Appeal No. 0120111518
Agency No. 106339402448
DECISION
Complainant filed a timely appeal with this Commission from the Agency's
decision dated December 3, 2010, 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. 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 Technical Data Systems Analyst at the Agency’s Naval Surface
Warfare Center facility in Port Hueneme, California.
Complainant contacted an EEO counselor on June 17, 2010, and on September
28, 2010, Complainant filed a formal EEO complaint alleging that the
Agency subjected her to discrimination on the bases of sex (female),
disability (limp/gait), age (54), and/or reprisal for engaging in
protected EEO activity (EEO counseling on the instant complaint), when:
1. from 2009 until present, the Agency denied her training;
2. from 2009 until present, the Agency denied her promotional
opportunities;
3. from February 11, 2010 until present, management officials and others
in her chain of command subjected her to derogatory remarks;
4. on April 15, 2010, she received an email notifying her that one of
her two ideas in her Investment Proposal was made the subject of an
event held by a senior employee, who allegedly took credit for it;
5. on July 22, 2010, she was contacted by the Director of Logistics and
ordered to turn over her assignments and duties; and
6. on August 25, 2010, she received an email from the Code A03
Supportability Manager, ordering her to stop work on projects.
She alleges he was ordered to do so by the Department Head, after the
command was notified of her EEO counseling.
In its Final Agency Decision (FAD), the Agency dismissed claims 1-4
for being untimely, as the Agency argued that she did not contact
an EEO counselor within 45 days of the date of the matter alleged to
be discriminatory, pursuant to 29 C.F.R. 1614.105(a)(1). The Agency
dismissed claim 5 because “it was first raised in [Complainant’s]
formal complaint . . . 68 days after it occurred,” pursuant to 29
C.F.R. 1614.107(a)(2).
The Agency accepted claim 6 for investigation, stating that it was timely
and that it was referring the matter for processing.
Neither Complainant nor the Agency submitted a brief on appeal.
ANALYSIS AND FINDINGS
Procedural Dismissal of Claims 1-4
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.
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 her control from contacting the Counselor within
the time limits, or for other reasons considered sufficient by the agency
or the Commission.
In the instant case, Complainant has not contended that she was unaware
of the time limits or was prevented from making timely EEO Counselor
contact for claims 1-4. In each of the four claims, Complainant has
not identified an event which occurred within 45 days of her June
17, 2010 initial EEO counselor contact. We note that in some of her
claims, such as the denial of promotional opportunities, she alleges
the discrimination is “ongoing.” However, Complainant has
failed to identify a particular promotional opportunity which she was
denied within the requisite 45 days. The same is true with her training
claim. Accordingly, the Agency's final decision dismissing the first four
counts of Complainant’s complaint on timeliness grounds is AFFIRMED.
Procedural Dismissal of Claim 5
The Agency dismissed claim 5 on the grounds that it was first raised
in the formal complaint 68 days after it occurred. However, we find
that this claim should be investigated. Complainant was already in EEO
counseling at the time this claim arose. In fact, she alleged that
the Agency action complained of in claim 5 was in retaliation for that
EEO counseling. Thus, claim 5 was in the nature of an amendment to
her informal complaint being processed to add a like or related claim.
The Commission has held that the 45-day limit does not apply to subsequent
attempts to amend a complaint. See generally 29 C.F.R. Part 1614; Braxton
v. United States Postal Service, EEOC Appeal No. 0120102410 (October 29,
2010). We therefore find that the Agency erred in dismissing claim 5.
Accordingly, the Agency's final decision dismissing Complainant's
complaint is AFFIRMED in part and REVERSED in part. We remand claim 5
for processing in accordance with the Order set forth below. Because
the Agency referred claim 6 for processing, we need not address the
matter herein. Claims 5 and 6 should be consolidated for continued
processing as they appear to be related.
ORDER
The Agency is ordered to process the remanded claim 5 in accordance
with 29 C.F.R. § 1614.108 et seq. To the extent possible, the claim
should be consolidated with claim 6. The Agency shall acknowledge to the
Complainant that it has received the remanded claim within thirty (30)
calendar days of the date this decision becomes final. The Agency shall
issue to Complainant a copy of the investigative file and also shall
notify Complainant of the appropriate rights within one hundred fifty
(150) calendar days of the date this decision becomes final, unless the
matter is otherwise resolved prior to that time. If the Complainant
requests a final decision without a hearing, the agency shall issue
a final decision within sixty (60) days of receipt of Complainant’s
request.
A copy of the Agency’s letter of acknowledgment to Complainant and a
copy of the notice that transmits the investigative file and notice of
rights must be sent to the Compliance Officer as referenced below.
IMPLEMENTATION OF THE COMMISSION’S DECISION (K0610)
Compliance with the Commission’s corrective action is mandatory.
The Agency shall submit its compliance report within thirty (30) calendar
days of the completion of all ordered corrective action. The report shall
be submitted to the Compliance Officer, Office of Federal Operations,
Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC
20013. The Agency’s report must contain supporting documentation, and
the Agency must send a copy of all submissions to the Complainant. If the
Agency does not comply with the Commission’s order, the Complainant
may petition the Commission for enforcement of the order. 29 C.F.R. §�
�1614.503(a). The Complainant also has the right to file a civil action
to enforce compliance with the Commission’s order prior to or following
an administrative petition for enforcement. See 29 C.F.R. §§ 1614.407,
1614.408, and 29 C.F.R. § 1614.503(g). Alternatively, the Complainant
has the right to file a civil action on the underlying complaint in
accordance with the paragraph below entitled “Right to File A Civil
Action.” 29 C.F.R. §§ 1614.407 and 1614.408. A civil action for
enforcement or a civil action on the underlying complaint is subject
to the deadline stated in 42 U.S.C. 2000e-16(c) (1994 & Supp. IV 1999).
If the Complainant files a civil action, the administrative processing of
the complaint, including any petition for enforcement, will be terminated.
See 29 C.F.R. § 1614.409.
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 (T0610)
This decision affirms the Agency’s final decision/action in part, but it
also requires the Agency to continue its administrative processing of a
portion of your complaint. 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 on both that portion of
your complaint which the Commission has affirmed and that portion of the
complaint which has been remanded for continued administrative processing.
In the alternative, you may file a civil action after one hundred and
eighty (180) calendar days of the date you filed your complaint with the
Agency, or your appeal with the Commission, until such time as the Agency
issues its final decision on your complaint. 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
July 1, 2011
__________________
Date
2
0120111518
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120111518