0120181515
07-17-2018
Lorita S,1 Complainant, v. Bill Johnson, President and Chief Executive Officer, Tennessee Valley Authority, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Lorita S,1
Complainant,
v.
Bill Johnson,
President and Chief Executive Officer,
Tennessee Valley Authority,
Agency.
Appeal No. 0120181515
Agency No. TVA-2017-0059
DECISION
Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's decision dated March 1, 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.
At the time of events giving rise to this complaint, Complainant worked as a former Contracts Manager at the Agency's facility in Chattanooga, Tennessee. Complainant indicated that she worked with the Agency until January 11, 2013, when she was forced to resign from the workplace. She asserted that the resignation was due to the sexual harassment she experienced. She noted that she was having a difficult time obtaining employment following her resignation. She contacted the Agency and obtained her employment record in August 2017. She learned that the Agency indicated that she was terminated from her position.
Following receipt of the documents, Complainant contacted the EEO Counselor alleging discrimination on September 5, 2017. At that time, Complainant indicated that the EEO Counselor failed to meet with her in 2012 regarding her claims of sexual harassment. When the matter was not resolved informally, on January 5, 2018, Complainant filed a formal complaint alleging that the Agency subjected her to discrimination on the bases of race (White), sex (female), religion (Not Specified), and reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 when:
1. From January 2009 to January 2013, Complainant was subjected to harassment which resulted in her constructive discharge.
2. On August 8, 2017, Complainant learned that there was an error in her personnel file and the Agency indicated that she was terminated.
The Agency initially accepted the complaint. Subsequently, the Agency issued its decision dated March 1, 2018, entitled "Notice of Dismissal." The Agency dismissed claim (1) pursuant to 29 C.F.R. � 1614.107(a)(2) for untimely EEO Counselor contact. The Agency found that claim (1) was a separate action from claim (2). Further, the Agency noted that the events in claim (1) occurred by January 2013. Complainant asserted that she had contacted the EEO Counselor in 2012. Complainant did not receive a response. However, Complainant did not follow up with the EEO Counselor until 2017 after she reviewed her personnel record. As such, the Agency found that the doctrine of laches applied and that the events surrounding Complainant's claim of harassment and constructive discharge were raised well beyond the 45-day time limit. The Agency noted that claim (2) was the only timely event but that it was a discrete act from the events alleged in claim (1). Consequently, the Agency indicated that it dismissed claim (1) and was remanding claim (2) to the Agency's EEO Office in order to continue the processing of claim (2). The Agency provided Complainant with appeal rights to the Commission if she wished to appeal the Agency's final decision which the Agency purported dismissed the complaint.
Complainant filed the instant appeal. It is unclear what she is appealing in that she requested an "extension" but failed to provide any argument on appeal. The Agency asked that the Commission dismiss her appeal.
Upon review, we find that the Agency erred in titling the document as a "Notice of Dismissal." The Agency issued a partial dismissal. The Agency indicated that it was continuing the processing of claim (2). At the conclusion of the Agency's investigation into claim (2), Complainant may request a hearing before an Equal Employment Opportunity Commission Administrative Judge and raise her concern regarding the dismissal of her claim of harassment and constructive discharge. In addition, when the Agency issues a final decision on claim (2) in Agency No. TVA-2017-0059, Complainant may also then raise any arguments concerning the Agency's dismissal of claim (1) related to the harassment and constructive discharge claim on appeal to the Commission. At this juncture, her appeal appears premature and is DISMISSED.
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
July 17, 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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