0120112470
09-19-2012
Mara Clemente, Complainant, v. John M. McHugh, Secretary, Department of the Army, Agency.
Mara Clemente,
Complainant,
v.
John M. McHugh,
Secretary,
Department of the Army,
Agency.
Appeal No. 0120112470
Agency No. ARMSE10SEP04422
DECISION
Complainant filed a timely appeal with this Commission from the Agency's decision dated February 10, 2011, 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), for untimely EEO Counselor contact.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Community Recreation Officer, NF-0301-04 at Fort Buchanan in Puerto Rico. On December 20, 2010, Complainant filed a formal complaint alleging that the Agency subjected her to discrimination and a hostile work environment, on the bases of race (Hispanic), national origin (Puerto Rican), sex (female), and reprisal (for prior protected EEO activity) when: (1) on July 12, 2010, she was terminated from her position as Community Recreation Officer, NF-0301-04, Directorate of Family and Morale, Welfare and Recreation (DFM-WR), because she refused a sexual offer from her supervisor (S1) in exchange for keeping her job; (2) on June 2, 2010, she received a Notice of Proposed Separation from her position as Community Recreation Officer; (3) in May 2010, S1 called her into his office and told her that, she has a short window of opportunity to solve the termination issue with him and he leaned his chair back and moved his hips forward in the chair, which Complainant understood to be an invitation which was not welcomed; (4) in May 2010, S1 told her that her home leave was cancelled; and (5) since 2008, S1 yelled at her; kicked employees out of her office to yell at her; pushed her chair so hard that she almost landed on top of her co- workers; threw a phone which bounced off his desk and landed in front of her; and threw his glasses or pens on tables to get her attention.
ANALYSIS AND FINDINGS
The record discloses that the last alleged discriminatory event occurred on July 12, 2010, but Complainant did not initiate contact with an EEO Counselor until September 2, 2010, which is beyond the forty-five (45) day limitation period. On appeal, Complainant has presented no persuasive arguments or evidence warranting an extension of the time limit for initiating EEO Counselor contact.1
CONCLUSION
Accordingly, the Agency's final decision dismissing Complainant's complaint is AFFIRMED.
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 (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 (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
September 19, 2012
__________________
Date
1 We agree with the Agency that the grievance filed by Complainant in response to her termination is not sufficient to warrant the extension of the time limit for initiating EEO Counselor contact. We note that Complainant did not raise discrimination as a basis in her grievance action. Moreover, the grievance decision did not change the effective date of termination, July 12, 2010.
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01-2011-2470
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013