0120162298
11-15-2016
Renee P.,1 Complainant, v. Gina McCarthy, Administrator, Environmental Protection Agency, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Renee P.,1
Complainant,
v.
Gina McCarthy,
Administrator,
Environmental Protection Agency,
Agency.
Appeal No. 0120162298
Agency No. 20150021HQ
DECISION
Complainant filed a timely appeal with this Commission from the Agency's decision (Dismissal) dated May 26, 2016, 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 Special Agent at the Agency's Office of Criminal Enforcement, Forensics and Training facility in Washington DC. On January 20, 2016, Complainant filed a formal complaint alleging that the Agency subjected her to discrimination on the bases of sex (female) and reprisal for prior protected EEO activity under a statute unspecified in the record when:
1. From May 3, 2015 to July 26, 2015, Complainant was not paid at the GS-14 level;
2. On September 28, 2015, Complainant was informed that she had not received a monetary performance reward from the Agency's Protective Services Detail (PSD);
3. At the conclusion of Complainant's detail to Agency's Office of Homeland Security (OHS), Complainant was not allowed to return to her position of record in PSD and was instead detailed to a position of unclassified duties in the Immediate Office of the Office of Criminal Enforcement, Forensics and Training Center;
4. On October 15, 2015, the Acting Director (AD) demanded the return of Complainant's equipment and her Capitol Hill and White House passes;
5. AD has assigned Complainant secretarial duties;
6. On December 1, 2015, Complainant received a "Fully Successful" Performance and Rating System (PARS) performance evaluation
The Agency dismissed the claims for untimely filing of the Formal Complaint and for failing to bring the claims to the attention of an EEO Counselor. Specifically, the Dismissal found that Complainant did not file her Formal Complaint until 295 days beyond the fifteen-day deadline for filing a Formal Complaint. The Dismissal further found that the claims raised in the Formal Complaint were not like or related to claims raised in Counseling.
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R. � 1614.106(b) requires the filing of a written complaint with an appropriate agency official within fifteen (15) calendar days after the date of receipt of the notice of the right to file a formal complaint. 29 C.F.R. � 1614.107(a)(2) provides that the agency shall dismiss 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).
The record discloses that Complainant was issued a notice of right to file a formal complaint on March 16, 2015. Although the notice indicated that Complainant had to file a formal complaint within fifteen (15) calendar days of its receipt, the Agency found that Complainant did not file her formal complaint until January 20, 2016, which is beyond the limitation period. The Agency noted that after the Agency issued Complainant her notice of right to file (Notice 1) on March 16, 2015, the parties entered into a settlement agreement on March 18, 2015, and that Complainant then filed her Formal Complaint in January of the following year.
On appeal, Complainant argues that the Agency has confused her Formal Complaint with an earlier complaint that was settled on March 18, 2015. Complainant maintains that the earlier, settled, complaint was under Agency case No. 2015-0121-HQ. She argues that she subsequently contacted an EEO Counselor a second time, on September 30, 2015, and her new claims were given an Agency case No. 2015-0111-HQ. Complainant maintains that the 6 claims addressed in the Dismissal were under Agency No. 2015-0111-HQ, not 2015-0121-HQ. She further maintains that her September 30, 2015 Counselor contact was timely, and that she received a new notice of right to file dated December 29, 2015, which she completed and returned as a Formal Complaint received by the Agency on January 20, 2016.
On appeal, the Agency recognizes that Complainant "does have a separate complaint under Agency number 2015-0111, which is still pending." The Agency further noted, however, that the pending complaint "concerns allegations different from those in the instant complaint." On appeal, Complainant has submitted copies of the December 29, 2015 notice of right to file (Notice 2). Notice 2 contains a description of the claims raised by Complainant during informal counseling under Agency No. 2015-0111. A review of that document shows that some, but not all, of the claims addressed in Notice 2 are different than the claims raised by Complainant in her January 20, 2016 Formal Complaint. Specifically, Notice 2 addresses the following claims that were raised in counseling:
You initially contacted the EEO Office on September 30, 2015, and alleged during counseling that you were discriminated against on the basis of race (African American) when you were subjected to harassment by [____] your direct supervisor from your detail position, from September 28 - October 2, 2015. Examples include: 1) On September 28, 2015, [____] advised you that other employees felt uncomfortable that you were wearing a firearm to work; 2) On October 2, 2015, [_____] called you into the office and made negative comments about your work products; and 3) During the week of September 28, 2015, [____] made faces behind your back while you were speaking with other employees, accused you of having a prior relationship with the division director, gossiped, and spread rumors about you.
You further alleged discrimination on the basis of sex (female) and retaliation (prior EEO activity) when: 1) On October 5, 2015, after returning from your detail, you were informed by [___], your supervisor of your permanent position, that you could not return to your position of record. You were also informed that you were required to turn in some of your equipment; and 2) In October 2015 you were informed you would not be receiving a cash award for the prior fiscal year.
Complainant's Appeal Brief, Attachment 5.
Specifically the claim alleging harassment between September and October 2015 is a different claim than any claim raised by Complainant in her January 20, 2016 Formal Complaint. See id., Attachment 8. The remaining claims, however, closely resemble claims raised by Complainant in that Formal Complaint, with only minor changes in the dates. For example the claim in Notice 2 regarding Complainant being told on October 5, 2015 that she could not return to her position of record and was required to turn in some of her equipment is essentially the same as claims 32 and 4. In addition the claim in Notice 2 regarding Complainant being denied a cash award in "October 2015" is essentially the same as claim 2 from her Formal Complaint wherein she claims that she was notified on September 28, 2015 that she had not received a cash award.
Because we find that claims 2, 3, and 4 were raised in Complainant's informal and Formal complaints, under Agency No. 2015-0111, which the Agency asserts is currently pending, we further find that these claims should be dismissed pursuant to 29 C.F.R. � 1614.107(a)(1), which states that an Agency shall dismiss a claim that states the same claim that is pending before the Agency or the Commission. Instead, the Agency shall continue to process these claims under Agency No. 2015-0111.
As regards claims 1, 5, and 6, we note that the regulation set forth at 29 C.F.R. � 1614.107(a)(2) states, in pertinent part, that an agency shall dismiss a complaint which raises a matter that has not been brought to the attention of an EEO Counselor, and is not like or related to a matter on which the complainant has received counseling. A later claim or complaint is "like or related" to the original complaint if the later claim or complaint adds to or clarifies the original complaint and could have reasonably been expected to grow out of the original complaint during the investigation. See Scher v. U.S. Postal Serv., EEOC Request No. 05940702 (May 30, 1995); Calhoun v. U.S. Postal Serv., EEOC Request No. 05891068 (Mar. 8, 1990).
Following a review of the record we find that claims 1, 5, and 6 were not raised in Counseling, as described in Notice 2, and are not like or related to the claims raised in Counseling. We therefore find that the Agency correctly dismissed these claims.
Finally, to the extent Complainant is alleging a breach of the March 18, 2015 settlement agreement, we find that the Agency correctly found that Complainant's notification of breach was untimely.
CONCLUSION
We therefore AFFIRM the Agency's Dismissal.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0416)
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. The requests may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. 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
November 15, 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.
2 The Dismissal did not provide a date for the events in claim 3 and provided a date of October 15, 2015, for claim 4. In her Formal Complaint Complainant also did not provide a date for claim 3, while giving the date of October 15 for claim 4.
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