0120152155
01-12-2016
Lorita S.,1 Complainant, v. Tom J. Vilsack, Secretary, Department of Agriculture (Forest Service), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Lorita S.,1
Complainant,
v.
Tom J. Vilsack,
Secretary,
Department of Agriculture
(Forest Service),
Agency.
Appeal No. 0120152155
Agency No. FS201400893
DECISION
Complainant filed a timely appeal with this Commission from the Agency's decision dated May 7, 2015, 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 Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Natural Resource Specialist (GS-0401/12) from her virtual office in Rockport, Maine.
On November 7, 2014, Complainant filed a formal complaint alleging that the Agency subjected her to discrimination on the bases of disability (traumatic brain injury, PTSD) and reprisal for (prior protected EEO activity) when:
1. Between January 2011 and April 11, 2013, management failed to grant her request for a reasonable accommodation in the form of authorized and secure remote access for Apple computer and equipment;
2. Between May 2012 and April 11, 2013, management failed to provide her with the authorized and secure remote access for PC based computer and equipment;
3. Between May 2012 and April 11, 2013, her employment status was denied;
4. On or about March 30, 2013, she discovered that her bank account, personal computer, personal smartphone, and various other personal electronic devices had been hacked into; and
5. On or about August 15, 2014, she learned that on various dates in 2013, her supervisor charged her as Absent Without Official Leave (AWOL) for a total of 1183 hours (from 2013 Pay Period 6 (March 24, 2013) to Pay Period 21(November 2, 2013)), even though she had 35 hours of accrued annual leave available to her.
The Agency dismissed all five claims pursuant to 29 C.F.R. � 1614.107(a)(2), for untimely EEO Counselor contact. In addition, the Agency found that claims 1 through 3 could also be dismissed pursuant to 29 C.F.R. � 1614.107(a)(1) as they all restated claims that were either pending before or decided by the Commission or the Agency.
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R. �1614.105(a)(1) provides that an aggrieved person must initiate contact with an EEC 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 the 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 lime limit, or for other reasons considered sufficient by the agency or Commission.
The record discloses that the alleged discriminatory events occurred between 2011 and 2013, yet Complainant did not initiate contact with an EEO Counselor until September 19, 2014, which is beyond the forty-five (45) day limitation period. There is no evidence to warrant extending the time frame. Complainant was aware of the time limitation because she had engaged in the EEO process before and during the time the alleged discriminatory events occurred. Although in her fifth claim, Complainant asserts she was unaware the alleged discriminatory event took place until August 2014, we find that she reasonably should have known about it since at least November 2013, when she raised the same claim in an MSPB appeal. Finally, Complainant did not provide sufficient evidence to demonstrate that circumstances beyond her control prevented her from timely contacting an EEO Counselor.
As the Agency's finding that all five of Complainant's claims should be dismissed on timeliness grounds is supported by the record, we will not address the Agency's other basis for procedural dismissal of Complainant's claims.
CONCLUSION
Accordingly, the Agency's final decision dismissing Complainant's complaint is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0815)
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 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, 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 (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
January 12, 2016
__________________
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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