0120131602
08-13-2013
Nancy L. Kinneer-Luckey, Complainant, v. Tom J. Vilsack, Secretary, Department of Agriculture (Food Safety and Inspection Service), Agency.
Nancy L. Kinneer-Luckey,
Complainant,
v.
Tom J. Vilsack,
Secretary,
Department of Agriculture
(Food Safety and Inspection Service),
Agency.
Appeal No. 0120131602
Agency No. FSIS-2012-00691
DECISION
Complainant filed a timely appeal with this Commission from the Agency's decision dated March 5, 2013, 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.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Supervisory Consumer Safety Inspector at the Agency's facility in Moultrie, Georgia.
On June 15, 2012, Complainant contacted the EEO Counselor. When the matter could not be resolved informally, on September 27, 2012, Complainant filed a formal complaint alleging that the Agency subjected her to harassment and discrimination on the bases of sex (female) and reprisal for whistle-blowing activity and prior EEO activity when:
1. Complainant was subject of workplace gossip and received an anonymous death thread, resulting in her removal from her assigned plant;
2. She was unfairly disciplined for allowing an employee to use an office computer.
3. She was subjected to harassment including a management official stating to her that "someone will leave voluntarily or life will be so miserable they will have to leave;" she was instructed to falsify employee documents; and she learned that management maintained a private file about her separate from her personnel file.
4. On February 8, 2012, Complainant was issued a Notice of Proposed Suspension which she served from May 22, 2012 to May 24, 2012.
5. She was not permitted to be a supervisor;
6. Since May 23, 2012, management has failed to respond to her administrative grievance; and
7. She was issued a Letter of Instruction.
The Agency issued a letter of partial acceptance on November 8, 2012. The Agency dismissed the basis of reprisal for whistle-blowing activity and claims (1)-(3) as claims asserted in Complainant's prior EEO complaint, FSIS-2011-00388. The record showed that on July 5, 2012, Complainant amended her prior complaint which was before an EEOC Administrative Judge (AJ) to include claims (4) and (5). The AJ granted Complainant's request to add claims (4) and (5) to the complaint pending a hearing. Therefore, on February 1, 2013, the Agency issued a new partial acceptance letter dismissing claims (4) and (5) pursuant to the amendment to the hearing. In addition, the Agency dismissed claim (6) for failure to state a claim noting that claim (6) constituted a collateral attack on the administrative grievance process. The Agency contacted Complainant's attorney requesting that Complainant clarify the event raised in claim (7).
On March 5, 2013, the Agency issued its decision dismissing the complaint. The Agency restated its dismissal of Complainant's claim of reprisal on the basis of whistle-blowing. The Agency then dismissed claims (1)-(5) noting that they were either raised in Complainant's prior EEO complaint or her prior complaint was amended to include these claims. The Agency then dismissed claim (6) pursuant to 29 C.F.R. � 1614.107(a)(1) for alleging a collateral attack. Finally, the Agency dismissed claim (7) pursuant to 29 C.F.R. � 1614.107(a)(2) for untimely EEO Counselor contact. Complainant indicated that she received the Letter of Instruction on October 21, 2011. As such, the Agency found that Complainant's contact in June 2012 was well beyond the 45 day time limit. Finally, the Agency dismissed Complainant's claim of harassment for failure to state a claim pursuant to 29 C.F.R. � 1614.107(a)(1).
Complainant appealed solely asserting that she contacted the Agency in a timely manner in conjunction to claim (7). The Agency requested that the Commission affirm the dismissal.
ANALYSIS AND FINDINGS
We note that Complainant did not challenge the dismissal of claims (1) - (6) nor her claims of harassment and reprisal for whistle-blowing. As such, we shall limit our review of the complaint at hand to the dismissal of claim (7) on the basis of sex and reprisal for Complainant's prior EEO activity.
EEOC Regulation 29 C.F.R. �1614.107(a)(2) states that the agency shall dismiss a complaint or a portion of a complaint that fails to comply with the applicable time limits contained in �1614.105, �1614.106 and �1614.204(c), unless the agency extends the time limits in accordance with �1614.604(c).
EEOC Regulation 29 C.F.R. �1614.105(a)(1) provides that an aggrieved person must initiate contact with an EEO 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 time limit, or for other reasons considered sufficient by the agency or Commission.
A review of the record shows that Complainant received a Letter dated October 21, 2011. Complainant contacted the EEO Counselor on June 15, 2012. Complainant failed to provide any argument or reason for her delay in contacting the EEO counselor. As such, we find that the dismissal of the complaint pursuant to 29 C.F.R. � 1614.107(a)(2) was appropriate.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency's dismissal of the complaint.
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
August 13, 2013
__________________
Date
2
0120131602
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120131602