0120170769
04-20-2017
Valery G.,1 Complainant, v. Ryan Zinke, Secretary, Department of the Interior (Fish and Wildlife Service), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Valery G.,1
Complainant,
v.
Ryan Zinke,
Secretary,
Department of the Interior
(Fish and Wildlife Service),
Agency.
Appeal No. 0120170769
Agency Nos. DOI-FWS-16-0207 & DOI-FWS-16-0473
DECISION
On December 17, 2016, Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from a final Agency decision (FAD) dated December 1, 2016, dismissing her complaints alleging 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., and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq.
BACKGROUND
When Complainant initiated action on her equal employment opportunity (EEO) complaints, she worked as an Administrative Support Assistant, GS-7, in the Agency's Region 8 in Sacramento, California.
On August 15, 2016, Complainant filed formal complaint DOI-FWS-16-0207 (Complaint 1). On April 29, 2016, she initiated EEO counseling on EEO informal complaint DOI-FWS-16-0473 (Complaint 2).
Complaint 1
Complainant alleged she was harassed and discriminated against on her race/color (Black), disability, and reprisal for prior protected EEO activity when:
1. On October 6, 2010, Realty Staff were allowed to vote for her or a White applicant to fill Vacancy RE-10-371043-SG.
2. On November 1, 2010, after she applied for Vacancy Announcement R8-11-398722-SG, the selecting official said she did not read her resume.
3. On May 5, 2011, a Field Office Supervisor called her a "bitch" and said that was the reputation management gave her.
4. On January 28, 2016, she was notified by email of a planned administrative function reorganization that removed her from her position and replaced her with a White female.
5. On February 1, 2016, she was counseled on her tone of voice and told not to phone into any meetings when on leave.
6. On February 2, 2016, the Assistant Regional Director, Science Applications told her "If you want to move up, then you have to treat them differently, and prove to them that you deserve to get promoted."
She was subjected to reprisal for prior EEO activity when:
7. On or about July 29, 2012 to May 31, 2016, the Deputy Regional Director failed to promote her (accretion of duties).
She was discriminated against based on disability when:
8. From May 2015 to present, she was required to submit a daily task report when teleworking and is required to submit a new telework agreement every three months.
Complaint 2
9. She was discriminated against on the bases of race/color, disability and/or reprisal when, on May 31, 2016, she was forced to retire.
After initiating EEO counseling on Complaint 1, Complainant received her notice of right to file her complaint on March 28, 2016. The Agency advised her that she had 15 calendar days from her receipt of the notice to file her complaint, and gave contact information for doing so. Complainant filed Complaint 1 on August 15, 2016.
The Agency dismissed Complaint 1 for failure to timely file the complaint. It reasoned that Complainant received notice of right to file Complaint 1 in March 2016, and did not do so until August 2016, beyond the 15-day time limit to do so.
Complainant initiated EEO counseling by email on Complaint 2 on April 29, 2016, writing that she felt she was being forced to retire and was raising her claim within the 45-day time limit. The EEO counselor wrote that on May 6, 2016, Complainant called her saying she decided to withdraw her EEO complaint and "just wanted to forget the whole thing." The EEO counselor reportedly asked Complainant to send an email confirming her decision to withdraw her pre-complaint. On May 9, 2016, Complainant emailed the EEO counselor that she would like to withdraw her last grievance request, a reference to the pre-complaint - Complaint 2.
On June 15, 2016, Complainant wrote the Director of the Fish & Wildlife Service, with copies to various people and organizations. She wrote, among other things, that every time she went the EEO route, which she suggested was over a period of years, she never succeeded in making a difference, the EEO process does not work, and she was forced to retire.
The Agency dismissed Complaint 2 because Complainant withdrew it at the pre-complaint stage on May 9, 2016. Citing Commission precedent, the Agency found that once a complainant has withdrawn an informal complaint, absent a showing of coercion, she may not reactivate the EEO process by filing a formal complaint on the same issue.2 The Agency found the comments Complainant made in her June 15, 2016 letter confirm her intention was not to continue with the EEO process.
The EEO counselor for Complaint 1 indicated that she presented to management specified remedies Complainant proposed, most of which were rejected, such as a promotion to GS-8, and back pay from July 2012. She wrote that the Agency proposed an alternate remedy - moving Complainant to a GS-7 position within the Business Operations and Technology Services.
On appeal, Complainant writes that the EEO counselor informed her that after talking to management nothing further was going to happen with her complaint, albeit she was offered a position in the Business and Technology Services Unit. Complainant writes that she asked the counselor what happens next and she replied it was not going any higher and Complainant had 15 days to decide. Complainant contends that the EEO counselor for Complaint 1 coerced her to believe that the matter was done, deterring her from filing her complaint. Thereafter, Complainant signed the notice of right to file Complaint 1, indicating she received the notice. Regarding Complaint 2, Complainant writes that she did not know she had EEO rights as a retiree, and hence did not contact an EEO counselor.
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R. � 1614.107(a)(2) requires, in pertinent part, that an agency dismiss a complaint which fails to comply with the applicable time limits contained in 29 C.F.R. � 1614.106, which requires the filing of a formal complaint within fifteen (15) days of receiving the notice of the right to do so. This time limit is subject to waiver, estoppel and equitable tolling. 29 C.F.R. � 1614.604(c).
Here, Complainant received her notice of right to file Complaint 1 by March 28, 2016, and filed it on August 16, 2016, far beyond the 15-calendar day time limit. Complainant argues, in essence, that the Agency is estopped from finding that she failed to timely file Complaint 1 since the EEO counselor dissuaded her from filing Complaint 1. This is not persuasive. Complainant's recitation of the conversation indicates that the EEO counselor advised her management was not granting her requested remedies, and resolution efforts were not going further, not that she should not file her complaint. The Agency's dismissal of Complaint 1 is affirmed.
With regard to Complaint 2, a complainant may not request reinstatement of an informal complaint unless the complaint was withdrawn pursuant to a settlement agreement. Once a complainant has withdrawn an informal complaint, absent a showing of coercion, a complainant may not reactivate the EEO process by filing a complaint on the same issue. Allen v. Department of Defense, EEOC Request No. 05940168 (May 25, 1995). Applying Allen, we affirm the dismissal of Complaint 2. We add that Complainant's explanation for not contacting an EEO counselor about Complaint 2 after she retired is not persuasive. On February 22, 2016, Complainant signed a notice of rights and responsibilities information sheet advising that allegations of discrimination involving acts or events occurring more than 45 days prior to when EEO counseling was requested may be dismissed. In her June 15, 2016 letter to the Director of the Fish & Wildlife Service, Complainant wrote that the EEO system does not work. We agree with the Agency that Complainant intentionally did not continue with the EEO process on Complaint 2.
The FAD is AFFIRMED.
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
April 20, 2017
__________________
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 Complainant attached her June 15, 2016 letter to the complaint she filed on August 16, 2016. In the letter, Complainant wrote she was forced to retire. The Agency construed this as alleging she raised issue 9 in this complaint. On appeal, Complainant indicates she raised this matter in in the letter. While Complainant discussed the matter therein, we find that she did not have intent at that time to enter the EEO process.
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