0120122903
12-12-2012
Cheri Ballance, Complainant, v. John M. McHugh, Secretary, Department of the Army, Agency.
Cheri Ballance,
Complainant,
v.
John M. McHugh,
Secretary,
Department of the Army,
Agency.
Appeal No. 0120122903
Agency No. ARAPG11APR01904
DECISION
Complainant filed a timely appeal with this Commission from the Agency's decision dated September 28, 2011, 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., Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Packaging Specialist Intern at the Agency's Communications Electronic Command Logistics Readiness Center in Fort Monmouth, New Jersey.
On May 31, 2011, Complainant filed a formal complaint alleging that the Agency subjected her to discrimination on the bases of sex (female), disability (unspecified mental and physical), age (48), and reprisal for prior protected EEO activity when:
a. In September 2010, Complainant's first line supervisor monitored her and denied her request for training;
b. On October 25, 2010, she was denied sick leave and charged absent without leave (AWOL). Complainant further alleges that her supervisor verbally assaulted her on October 27, 2010, during a conversation about the AWOL charge;
c. On October 28, 2010, Complainant had a phone conversation with her second line supervisor who advised Complainant that she would not override the decision of Complainant's supervisor about the AWOL charge from October 25, 2010; and
d. On November 18, 2010, Complainant's supervisor harassed her about her whereabouts and allegedly coerced her with threats regarding provide him a leave slip.
In its final decision, the Agency dismissed the complaint in accordance with EEOC Regulation 29 C.F.R. � 1614.107(a)(2) as untimely. Specifically, the Agency determined that Complainant failed to contact an EEO Counselor regarding her concerns in a timely manner. The Agency found that Complainant's initial EEO Counselor contact on April 27, 2011, regarding events which occurred in September - November 2010 was untimely. The instant appeal followed.
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R. � 1614.105(a)(1) requires that complaints of discrimination should be brought to the attention of the Equal Employment Opportunity Counselor within forty-five (45) days of the date of the matter alleged to be discriminatory or, in the case of a personnel action, within forty-five (45) days of the effective date of the action.
EEOC regulations provide that the Agency or the Commission shall extend the time limits when the individual shows that she was not notified of the time limits and was not otherwise aware of them, that she did not know and reasonably should not have known that the discriminatory matter or personnel action occurred, that despite due diligence he was prevented by circumstances beyond his control from contacting the Counselor within the time limits, or for other reasons considered sufficient by the Agency or the Commission. See 29 C.F.R. � 1614.105(a)(2).
The record discloses that the most recent alleged discriminatory event occurred on November 18, 2010, but Complainant did not initiate contact with an EEO Counselor until April 27, 2011, which is well beyond the forty-five (45) day limitation period. To the extent that Complainant alleges that she was subjected to ongoing discrimination over a period of time as described in claims a, b, c, and d, we still find that the most recent alleged incident occurred in November 2010. Moreover, at least claims a and b were discrete acts which should have triggered Complainant's duty to act. We find therefore, that Complainant's complaint is properly dismissed for failure to contact an EEO Counselor. In reaching this conclusion, we are not persuaded by Complainant's allegations on appeal that she was not aware that she had been discriminated against until she received an email from her supervisor in March 2011. The record contains copies of emails Complainant sent to her second line supervisor as early as August 2010 regarding the denial of training and alleged harassment by her first line supervisor.
On appeal, Complainant has presented no persuasive arguments or evidence warranting an extension of the time limit for initiating EEO Counselor contact.
CONCLUSION
Accordingly, the Agency's final decision dismissing Complainant's complaint is AFFIRMED for the reasons set forth herein.
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
December 12. 2012
__________________
Date
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0120122903
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120122903