0120092790
09-15-2009
Veronica R. Crutches, Complainant, v. Pete Geren, Secretary, Department of the Army, Agency.
Veronica R. Crutches,
Complainant,
v.
Pete Geren,
Secretary,
Department of the Army,
Agency.
Appeal No. 0120092790
Agency No. ARIMEU09MAR01102
DECISION
Complainant filed a timely appeal with this Commission from a final agency
decision (FAD) dated May 14, 2009, 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.
Complainant was a supervisory program manager, serving as a Deputy
Garrison Commander in Bamberg, Germany from July 8, 2007 to December 22,
2008. Effective December 23, 2008, she was reassigned to the position
of supervisory management analyst serving as Chief of Base Realignment &
Closure (BRAC) at Fort McPherson, Georgia. In her complaint, complainant
alleged that she was subjected to discrimination and harassment on the
bases of race (black) and sex (female) when:
1. during her above employment in Germany, she was overlooked by the
Commander and not supported when carrying out the Commander's decisions;
2. by letter dated September 2, 2008, her request for Federal Executive
Institute Seminar Program training was denied;
3. for approximately 70 days prior to December 9, 2008, she was placed
on administrative leave, pending the outcome of a 15-6 investigation
involving misuse of government resources. During this time, rumors
surfaced that she was guilty of charges, in jail, or fired, which the
Commander did not address, resulting in a hostile work environment;
4. she received a letter of reprimand dated November 17, 2008,
5. she received a notice of 14 calendar day suspension dated December 5,
2008, which was effective December 9, 2008; and
6. she received an unfavorable performance appraisal on or about January
26, 2009, for the period covering October 1, 2007 to September 30, 2008.1
The FAD dismissed the complaint for failure to timely initiate contact
with an EEO counselor. It reasoned that complainant contacted an EEO
counselor on March 23, 2009, beyond the 45 calendar day time limit to
do so.
On appeal, complainant argues that she received an unfavorable decision on
February 12, 2009, on an administrative grievance she filed. She argues
the grievance decision was the final culminating event of discrimination,
and she timely contacted an EEO counselor on March 23, 2009, regarding the
agency's continuous actions. The grievance decision upheld the letter
of reprimand and suspension which are the subject of claims 4 and 5.
In opposition to the appeal, the agency argues that the administrative
grievance did not toll the time limit to seek EEO counseling, and the
FAD should be affirmed.
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 utilization of internal agency
procedures, union grievances, and other remedial processes does not toll
the time limit for contacting an EEO Counselor. Hosford v. Department
of Veterans Affairs, EEOC Request No. 05890038 (June 9, 1989).
Complainant argues that grievance decision was the final culminating event
of discrimination. To the extent we accept that the grievance decision
was part of complainant's complaint,2 we find it does not give grounds
for filing an independent claim. The grievance decision concerned
complainant's appeal of the letter of reprimand and suspension which
occurred in late 2008. Complainant's dispute in the EEO process with the
grievance decision constitutes an impermissible collateral attack on the
administrative grievance forum, and fails to state a claim. See Wills
v. Department of Defense, EEOC Request No. 05970596 (July 30, 1998);
Kleinman v. United States Postal Service, EEOC Request No. 05940585
(September 22, 1994); Lingad v. United States Postal Service, EEOC Request
No. 05930106 (June 25, 1993); 29 C.F.R. � 1614.107(a)(1).
As complainant failed to timely initiate EEO counseling regarding claims
1 through 6, the FAD is affirmed.
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
September 15, 2009
__________________
Date
1 Complainant raised claims 2 and 5 with the EEO counselor. We find
claim 2 was part of complainant's overall complaint claim of harassment,
and claim 5 was referenced in her complaint, albeit not in an expected
location. We find that the FAD incorrectly did not include claims 2
and 5 as claims in complainant's complaint.
2 Complainant raised the grievance decision with the EEO counselor,
but did not specifically allege this matter in her complaint.
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0120092790
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120092790