0120160557
02-18-2016
Torie A.,1 Complainant, v. Ray Mabus, Secretary, Department of the Navy, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Torie A.,1
Complainant,
v.
Ray Mabus,
Secretary,
Department of the Navy,
Agency.
Appeal No. 0120160557
Agency No. 15-62604-02901
DECISION
On November 25, 2015, Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from a final Agency decision (FAD) dated October 26, 2015, dismissing her complaint of unlawful employment discrimination in violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Youth Director, Child Development Center, NF-04, in Gulfport, Mississippi.
On September 29, 2015, Complainant filed a formal complaint alleging that the Agency subjected her to discrimination based on disability when:
1. In November 2014, she was not returned to work; and
2. She was terminated for Medical Inability effective February 13, 2015.2
The Agency dismissed the complaint for failure to timely initiate equal employment opportunity (EEO) counseling. It reasoned that Complainant initiated EEO counseling on August 4, 2015, beyond the 45 calendar day time limit. It also dismissed Complainant's complaint because the parties entered into a settlement agreement which was approved by the United States Department of Labor Administrative Law Judge on April 10, 2015, which resolved all potential and outstanding claims arising from her employment, including EEO claims. Based on the settlement agreement, the Agency found that the complaint failed to state a claim and was also a collateral attack on the Department of Labor Office of Workers' Compensation process that gave rise to the settlement agreement.
On appeal, Complainant argues that after being removed, she requested mediation, which was not granted, and that on July 15, 2015, she received her last correspondence from the Executive Officer, who signed the decision to terminate her. Complainant argues that she requested the Department of Labor Administrative Law Judge to dismiss the settlement agreement before he approved it, to no avail.
ANALYSIS AND FINDINGS
An aggrieved person must seek EEO counseling within 45 days of the date of the alleged discriminatory action, or in the case of a personnel action, within 45 days of the effective date of the action. 29 C.F.R. � 1614.105(a)(1) & .107(a)(2). The Commission has consistently held that the utilization of alternative agency procedures, union grievances, and other remedial processes does not toll the time limit for contacting an EEO counselor. See Ellis v. United States Postal Service, EEOC Appeal No. 01992093 (November 29, 2000).
Here, Complainant was terminated effective February 13, 2015, and she did not initiate EEO counseling until August 4, 2015, beyond the 45 calendar day time limit. While she requested mediation after the termination, this did not toll the time limit to initiate EEO counseling. Ellis. Issue 1 occurred before the termination. The Agency properly found that Complainant failed to timely initiate EEO counseling.
Moreover, Complainant settled all claims arising from her employment, including EEO claims, after her termination, and a Department of Labor Administrative Law Judge approved this settlement agreement in April 2015. If Complainant wishes to invalidate the settlement agreement, she must pursue this avenue before the Department of Labor, not the EEOC.
The FAD is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0815)
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, 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 (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
February 18, 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 Agency only defined issue 2. A review of Complainant's complaint and the counselor's report shows she also alleged issue 1.
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