0120121257
06-19-2012
Marginia R. Kemp, Complainant, v. Janet Napolitano, Secretary, Department of Homeland Security (U.S. Coast Guard), Agency.
Marginia R. Kemp,
Complainant,
v.
Janet Napolitano,
Secretary,
Department of Homeland Security
(U.S. Coast Guard),
Agency.
Appeal No. 0120121257
Agency No. HS-10-USCG-003302
DECISION
By Notice of Appeal postmarked January 23, 2012, Complainant filed an appeal with this Commission from the November 28, 2011 final Agency decision (FAD) concerning her EEO 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. For the following reasons, we accept the appeal and AFFIRM the Agency's decision, dismissing Complainant's complaint.
BACKGROUND
Timeliness of Appeal
The record shows that the Agency mailed its decision to Complainant on December 1, 2011. Complainant did not specify in her Notice of Appeal the date of her receipt of the decision. Allowing five calendar days from the date of mailing, Complainant's appeal would have been due to the Commission by January 7, 2012, to be timely filed. The record, however, does not contain a copy of the certified mail return receipt card documenting when the FAD was actually received by Complainant. Inasmuch as the Agency has not shown that the appeal is untimely, we accept Complainant's appeal, pursuant to 29 C.F.R. �� 1614.402 and 1614.403.
Facts
Complainant is a former probationary employee with the United States Coast Guard. The record shows that on September 13, 2009, Complainant began a probationary Career Conditional Appointment with the U.S. Coast Guard as a Mail Clerk, GS-0305-06. The appointment was subject to a one-year probationary period, during which her employment could be terminated if her conduct or performance failed to demonstrate fitness for continued employment. The probationary period officially began on September 27, 2009, when Complainant reported for duty.
On January 13, 2010, Complainant contacted an EEO counselor.
On February 10, 2010, she filed a formal complaint, alleging that the Agency discriminated against her because of her sex (female) and subjected her to a hostile work environment when:
1. On October 28, 2009, Complainant's supervisor (the Branch Chief) and a Chief Warrant Officer verbally assaulted Complainant;
2. On October 28, 2009, the Executive Officer placed Complainant on administrative leave;
3. On November 6, 2009, the Branch Chief issued Complainant a Notice of Termination;1 and
4. On December 2, 2009, Complainant received notification that she was indefinitely barred from entering the base.
The Agency initially accepted Complainant's allegations. Following an investigation, Complainant requested a hearing before an Administrative Judge.
The AJ dismissed Complainant's hearing request for failure to cooperate after Complainant did not respond to the scheduling order that required the parties to submit pre-hearing reports. The AJ remanded the complaint back to the Agency for a decision.
In its decision, the Agency dismissed the claims for untimely EEO contact. The Agency found that Complainant should have reasonably suspected that she may have been subjected to unlawful discrimination on November 6, 2009, when the Agency issued Complainant a Notice of Termination. The Notice of Termination advised Complainant of the 45 day filing requirement to initiate EEO contact. The Agency also determined that Complainant did not present a persuasive argument to warrant an extension of the applicable time limit.
The Agency dismissed the last claim (denied future entry to the base) for failure to state a claim. The Agency concluded Complainant had not alleged that she was aggrieved as an employee or applicant for employment.
As further background, on October 9, 2009, Complainant accused another employee of losing the fuel card and misplacing the certified log book. On that same date, the employee (whom Complainant accused) then reported that he felt threatened by Complainant.
On October 28, 2009, Complainant's supervisor informed Complainant that the employee whom Complainant accused of losing the fuel card would be operating the Mail Center, during Complainant's absence. Complainant objected and told her supervisor that she did not want the employee in the mailroom because she did not trust him. Complainant then accused the supervisor of playing games.
On that same day (October 28, 2009), Complainant maintains that she was verbally assaulted after she tried to explain that she had not told another employee that he was never going to be anything. During the third week of October of 2009, the Chief Warrant Officer was repeatedly told that Complainant made derogatory and demeaning remarks towards another coworker. Complainant stated that it was "not my intent to ridicule or abuse him; all I tried to do was to help the kid." Complainant acknowledged that she also stated "in order for [her] to treat him as disabled, his condition would have to be documented. I was trying to get him help."
The Agency placed Complainant on administrative leave based on the incidents. The letter placing Complainant on leave stated that "recent incidents indicate that you need time away to reevaluate your performance particular in regards to your ability to communicate effectively and respectfully" with coworkers and customers.
On November 6, 2009, the Agency issued Complainant a "Notice of Termination during Probationary Period." Her last date of employment was November 6, 2009. She turned in her badge and access card. She refused to sign for her receipt of the Notice of Termination.
On November 24, 2009, Complainant left a voice mail in which she indicated that she wanted to offer her side of the story. It is undisputed that during the voice mail, Complainant mentioned Fort Hood (where a mass murder had recently occurred). She said that her words were not intended to be a threat. She was just observing that "when people are left unaccountable, things like Fort Hood could occur." On December 2, 2009, Complainant received a letter advising her that she was barred indefinitely from the base.
Complainant offered no brief in support of her appeal.
ANALYSIS
EEOC Regulation 29 C.F.R. � 1614.105(a)(1) requires that complaints of discrimination should be brought to the attention of the EEO Counselor within forty-five 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. The Commission has adopted a "reasonable suspicion" standard (as opposed to a "supportive fact" standard) to determine when the forty-five (45) day limitation period is triggered. See Howard v. Department of the Navy, EEOC Request No. 05950852 (February 11, 1999). Thus, the time limitation is not triggered until a Complainant reasonably suspects discrimination, but before all the facts that support a charge of discrimination have become apparent.
EEOC Regulations also provide that the Agency or the Commission shall extend the time limits when the individual was not notified of the time limits or was otherwise not aware of them.
In this case, the record shows that the Notice of Termination advised Complainant that she had 45 days from the effective date of her termination to initiate EEO contact. We find that the Agency met its burden to support a reasoned determination as to timeliness.
Although Complainant was made aware of the time limitations to initiate EEO contact, the record shows that Complainant did not initiate contact within 45 days of the issuance of the Notice of Termination. We further find that Complainant has presented no persuasive arguments or evidence warranting an extension of the time limit for initiating EEO Counselor contact.
We also find that the letter advising Complainant that she is indefinitely barred from the base is a discrete and new allegation, which is distinct from Complainant's other allegations. In this case, the timely filing of that issue does not render her other issues timely.
Finally, we note that Complainant did not refer to the December 2, 2009 denial of entry in her February 10, 2010 formal complaint. As to that issue, we agree with the Agency that the allegation (prospectively denying access) does not allege a harm or injury to a term or condition of employment to which she would be entitled as an employee or applicant.
Even assuming that a future denial of entry could be construed as harming Complainant, the Agency articulated a legitimate reason for its decision to restrict Complainant's access, in light of the November 24, 2009 voice-mail. The matter was investigated. The record shows that men and women have been barred from the base. There is no evidence that would show that the Agency's legitimate nondiscriminatory reason was a pretext for unlawful discrimination.
For all of these reasons, we AFFIRM the Agency's decision.
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 tends 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
June 19, 2012
__________________
Date
1 The record shows that Complainant filed a complaint with the Merit Systems Protection Board (MSPB) regarding her termination. The MSPB dismissed her appeal for lack of jurisdiction because Complainant was a probationary employee.
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0120121257
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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