0120091099
05-27-2009
Melinda Walker, Complainant, v. Tom J. Vilsack, Secretary, Department of Agriculture, Agency.
Melinda Walker,
Complainant,
v.
Tom J. Vilsack,
Secretary,
Department of Agriculture,
Agency.
Appeal No. 0120091099
Agency No. FS-2007-00814
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's appeal from the agency's October 31, 2008 final decision concerning her equal employment opportunity (EEO) complaint claiming 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.
During the period at issue, complainant was employed as a Residential Social Services' Assistant, GS-186-5, at the agency's Region 8, St. Francis National Forest in Ozark, Arkansas.
On May 18, 2007, complainant initiated EEO Counselor contact. Informal efforts to resolve her concerns were unsuccessful.
On August 31, 2007, complainant filed the instant formal complaint. Therein, complainant alleged that she was the victim of unlawful employment discrimination in reprisal for prior protected EEO activity when:
1. on January 14, 2007, her schedule was changed to the midnight shift; and
2. on April 24, 2007, she was denied the opportunity to work overtime. 1
At the conclusion of the investigation, complainant was provided with a copy of the report of investigation and notice of her right to request a hearing before an EEOC Administrative Judge (AJ). In accordance with complainant's request, the agency issued a final decision on October 31, 2008, pursuant to 29 C.F.R. � 1614.110(b).
In its October 31, 2008 final decision, the agency dismissed claim 1 on the grounds of untimely EEO Counselor contact pursuant to 29 C.F.R. � 1614.107(a)(2). The agency determined that complainant's initial EEO Counselor contact on May 18, 2007, was beyond the 45-day limitation period.
The agency dismissed claim 2 finding that complainant waived her right to pursue an EEO complaint for incidents arising following the execution of a settlement agreement dated May 14, 2007. Specifically, the agency determined that on May 14, 2007, the parties entered into a settlement agreement in resolution of complainant's sexual harassment claim against an identified agency official. The agency stated that under Section 2 of the agreement, complainant agreed to "voluntarily waive, raise and forever discharge the agency, its employees, representatives and agents from any claims, demands or causes of action which the Complainant has, or may have, arising from any claim or alleged claim of employment discrimination against the Forest Service arising up to and including the effective date of this Agreement..."
Claim 1
EEOC Regulation 29 C.F.R. � 1614.107(a)(2) 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) of the effective date of the action. The record reflects that the shift change occurred on January 14, 2007, but that complainant did not initiate contact with an EEO Counselor until May 18, 2007, well beyond the 45-day limitation period. The record in the instant case does not establish an alleged incident occurred within 45 days of complainant's May 18, 2007 EEO Counselor contact. Complainant has failed to present adequate justification for extending the limitation period beyond forty-five days. Therefore, we find that the agency properly dismissed claim 1 on the grounds of untimely EEO Counselor contact.
Claim 2
The Commission determines, with regard to Claim 2, that complainant failed to state a claim because she was not aggrieved pursuant to 29 C.F.R. � 1614.107(a)(1). Complainant claimed that she was discriminated against when, on April 24, 2007, she was denied the opportunity to work overtime. However, there is no indication that complainant actually made a request for overtime. Instead, she asserts that a co-worker (CW), who works a shift that typically included overtime, asked the Assistant Supervisor (AS) whether complainant could work his overtime shift on his behalf, because he needed a break. Complainant stated that AS declined CW's request. Under these facts, we conclude that the coworker is the aggrieved employee, and not complainant. Accordingly, dismissal of this claim is appropriate.
Because we determine that the matter identified in Claim 2 fails to state a claim for the reason discussed above, we will not address the agency's discussion that complainant waived the right to pursue claims because of the execution of a May 2007 settlement agreement.
Accordingly, we AFFIRM the agency's final decision dismissing claims 1 - 2.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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), 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 (S0408)
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 (Z1008)
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
May 27, 2009
__________________
Date
1 For ease of reference, the Commission has numbered complainant's claims as claims 1 - 2.
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0120091099
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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