Complainant,v.Jeh Johnson, Secretary, Department of Homeland Security (Customs and Border Protection), Agency.

Equal Employment Opportunity CommissionOct 30, 2014
0120142297 (E.E.O.C. Oct. 30, 2014)

0120142297

10-30-2014

Complainant, v. Jeh Johnson, Secretary, Department of Homeland Security (Customs and Border Protection), Agency.


Complainant,

v.

Jeh Johnson,

Secretary,

Department of Homeland Security

(Customs and Border Protection),

Agency.

Appeal No. 0120142297

Agency Nos. HS-CBP-22594-2012 & HS-CPB-22594-2012

DECISION

On June 11, 2014, Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from a final Agency decision (FAD) dated June 9, 2014, dismissing her complaints 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 her complaints, Complainant worked as a Paralegal Specialist, GS-11, at the Agency's Office of Border Patrol, Laredo Sector Headquarters, Asset Forfeiture Office in Laredo, Texas.

By email on March 20, 2014, Complainant filed Complaint 1 (HS-CPB-22594-2012) alleging that she was discriminated against based on her sex when she was harassed from April 27, 2012 through July 2, 2012. Examples of the alleged harassment included being belittled, yelled at and insulted by management for making an error, receiving a verbal and written counseling, being told her performance was deficient and scheduled for training for this reason, being scrutinized and monitored, and getting targeted for every little mistake she made.1

On March 20, 2014, Complainant filed formal complaint 2 (HS-CPB-22594-2012) by email alleging that she was discriminated against when she was harassed based on her sex and reprisal for prior protected EEO activity under Title VII when:

a. on July 31, 2013, she was issued a reprimand;

b. on August 30, 2013, she was assigned a task which prevented her from benefiting from the 59 minutes of administrative leave granted to her other colleague by the Supervisory Paralegal Specialist;

c. her activities are scrutinized;

d. she is required to submit memorandums regarding mistakes she makes;

e. she is never left in charge of the office in the absence of her supervisor and manager;

f. she does not receive assistance in completing her caseload during her absences from the office;

g. she must obtain supervisory approval before requesting assistance from the Mission Support Assistant; and

h. she is not permitted to finish her work when it is past 4 PM.2

The record shows that, following EEO counseling, on September 6, 2012, the Agency had sent Complainant a Notice of Right to File Discrimination on Complaint 1. The Agency also had sent Complainant a Notice of Right to File Discrimination, dated November 21, 2013, on Complaint 2. In both Notices, the Agency informed Complainant that she must file Complaint 1 within 15 calendar days of receipt of the Notice, and provided a physical and email addresses and facsimile number for doing so.

In March 2014, the Agency advised Complainant that she received the Notices of Right to File for Complaints 1 and 2, respectively, on September 6, 2012 and November 22, 2013, but did not file her complaints until March 20, 2014, well beyond the 15-day deadline. The Agency inquired why she waited until March 20, 2014.

Complainant responded by email that during EEO counseling Agency officials made unequivocal verbal assurances in both her EEO cases that settlement agreements would be reduced to writing for signatures, but they were never reduced to writing. She wrote that the Agency waited until the deadlines passed before reneging on entering into settlement agreements, and she relied on these assurances to her detriment.

On appeal, Complainant reiterates the above argument. She adds that she believed she should wait for the purported agreements to be reduced to writing because escalating her EEO cases to EEOC hearings or federal lawsuits would be unnecessary, disruptive, time consuming, expensive, and cause further damage to her relationship with Agency management. Complainant writes that she was not notified until March 5, 2014, that the Agency reneged on the promise to reduce the settlement agreements to writing.

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. This regulation requires the filing of a formal complaint within fifteen (15) days of receiving the notice of the right to do so.

It is undisputed that Notice of Right to File for Complaints 1 and 2 that were received by Complainant on September 10, 2012, and November 22, 2013, respectively. Complainant acknowledges that she missed the 15-day filing deadlines, but asserts she waited based on assurances that settlement agreements would be reduced to writing.3

Waiting for a settlement agreement to occur is not an adequate reason not to timely file a formal complaint. Complainant's argument that she relied on the Agency's assurances to her detriment is unpersuasive because there was no promise by the Agency to settle the matters if she did not file formal complaints.

Accordingly, the FAD is AFFIRMED.

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

October 30, 2014

__________________

Date

1 The Agency defined the complaint as concerning harassment from April 27, 2012 through June 11, 2012. A review of the complaint reveals incidents through July 2, 2012. The Agency's definition of the complaint did not include examples of the harassment. We added them for the sake of clarity.

2 The Agency's definition of the complaint did not capture the basis of sex discrimination or incident h. We included these matters since Complainant alleged them in her complaint.

3 In Complaints 1 and 2, which were filed in 2013, Complainant indicated that she received the Notices, respectively, on June 19, 2012, and September 4, 2013. It appears Complainant must have been referring to something else, since she actually received the Notices later in 2012 and 2013. But no matter which of the above 2012 and 2013 trigger dates is used, Complaints 1 and 2 were untimely filed.

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0120142297

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013

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0120142297