0120141971
10-21-2014
Complainant, v. Sylvia Mathews Burwell, Secretary, Department of Health and Human Services (National Institutes of Health), Agency.
Complainant,
v.
Sylvia Mathews Burwell,
Secretary,
Department of Health and Human Services
(National Institutes of Health),
Agency.
Appeal No. 0120141971
Agency No. HHS-NIH-NCI-099-13
DECISION
Complainant filed a timely appeal with this Commission from the Agency's final decision dated February 25, 2014, 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. and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq.
BACKGROUND
During the period at issue, Complainant worked as a Medical Officer at the Agency's Division Cancer Prevention in Bethesda, Maryland.
On October 12, 2012, Complainant initiated EEO Counselor contact. Informal efforts to resolve her concerns were unsuccessful
On December 27, 2013, Complainant filed the instant formal complaint. Therein, Complainant alleged that she was subjected to harassment and a hostile work environment on the bases of national origin, sex, disability, and in reprisal for prior EEO activity when:
1. from 2003 to 2006, her supervisor retaliated against her by soliciting false, negative written feedback and assassinating her professional and personal character;
2. from 2004 to 2005, [named Doctor] and [named Doctor] attempted to end her detail and sabotage her research work;
3. in January 2005, her supervisor provided her supervisor with documents that depicted Complainant in a negative light in violation of a 2004 Memorandum of Understanding (MOU);1
4. throughout 2005, the Director of the Office of Center, Training, and Resources (OCTR) interfered with the renewal of Complainant's detail, attempted to sabotage her research, referred to her as "a problem employee left over from the previous administration;"
5. in November 2005, the Director of OCTR ended her detail and forced her to return to the National Cancer Institute (NCI);
6. from November 2005 to 2007, the Director and Deputy Director of OCTR solicited negative feedback about Complainant from other NCI employees in order to take personnel action against her;
7. in July 2006, the Director and Deputy Director changed her performance plan from that of a Medical Officer to that of low grade support staff;
8. in August 2006, she was questioned regarding her EEO activity during an employment interview;
9. in April 2007, the Deputy Director issued her a letter of counseling which addressed false and frivolous events;
10. on November 16, 2007, the Deputy Director issued her a letter of reprimand which referenced false charges from the April 2007 letter of counseling;
11. in 2008, the Chief of Lung Upper Aerodigestive Cancer Research Group (Chief) solicited false negative written feedback in order to take disciplinary action against her;
12. in March 2008, she was involuntarily reassigned to the DCP which operates outside of her field;
13. from April 2008 to June 2008, the Chief requested negative written feedback about her from DCP employees and proposed her suspension which referenced false charges;
14. in July 2008, she was suspended without pay for 3 days;
15. in 2008, she was issued several different performance plans which were below her professional standard;
16. in September 2008, she was involuntarily reassigned to the Nutritional Science Research Group (NSRG);
17. in November 2009, NCI issued a MOU as a condition for her telework and reasonable accommodation;
18. from 2005 to 2011, NCI management has refused to acknowledge her professional qualifications and has treated her in an insulting and degrading way;
19. from 2005 to 2011, she has been receiving low level assignments;
20. from 2005 to 2011, she has been precluded from participating in scientific meetings;
21. from 2005 to 2011, she has received undeservedly low performance evaluations;
22. from 2005 to 2011, she has been denied a compressed work schedule, flexible work schedule, and telework;
23. from 2007 to 2011, she was required to have her disability reevaluated by the Occupational Medical Service every 3-5 months; and
24. in 2006, 2008 and 2009, she was not selected to the GS-15 Medical Officer positions for which she was qualified.
The Agency dismissed claims 1 - 24 on the grounds of untimely EEO Counselor contact, pursuant to 29 C.F.R. � 1614.107(a)(2). The Agency determined that Complainant's initial EEO Counselor contact was on October 12, 2012, which it found to be beyond the 45-day limitation period.
The Agency also dismissed claims 1 and 9 - 24 for stating the same claims that were raised in a prior EEO complaint, pursuant to 29 C.F.R. � 1614.107(a)(1). Specifically, the Agency found that claims 1 and 9 - 24 raise the same matter in the following Agency Case Nos.: HHS-NCI-EEO-2004-0004, HHS-NIH-0182-2007, HHS-NIH-0170-2008, HHS-NIH-0076-2009, HHS-NIH-0062-2010, HHS-NIH-0403-2010, and HHS-NIH-0115-2011.
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 personnel action, within forty-five (45) days of the effective date of the action. The Commission has adopted a "reasonable suspicion" standard (as opposed to a "supportive facts" standard) to determine when the forty-five (45) day limitation period is triggered. See Howard v. Department of the Navy, EEOC Request No. 05970852 (February 11, 1999). Thus, the time limitation is not triggered until a Complainant reasonably suspects discrimination, but before all the facts that support a charge of discrimination have become apparent.
EEOC Regulations provide that the Agency or the Commission shall extend the time limits when the individual shows that he was not notified of the time limits and was not otherwise aware of them, that he 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.
The alleged discriminatory event occurred from 2003 to 2011, but Complainant did not initiate contact with an EEO Counselor until October 12, 2012, well beyond the 45-day limitation period. Complainant had or should have had a reasonable suspicion of discrimination regarding her claim more than 45 days prior to his initial contact with an EEO Counselor.
In summary, we determine that, on appeal, Complainant did not present persuasive arguments or evidence warranting an extension of the time limit for initiating EEO Counselor contact. See 29 C.F.R. � 1614.604(c). Specifically, we note that Complainant does not argue that she was not aware of the time limits for contacting an EEO Counselor. Therefore, the Agency properly dismissed the instant formal complaint on the grounds of untimely EEO Counselor contact.
The Agency's final decision dismissing Complainant's formal complaint for the reason stated herein is AFFIRMED.
Because we affirm the Agency's dismissal of the instant complaint for untimely EEO Counselor contact, we find it unnecessary to address it on alternative procedural grounds (stating the same claims that were raised in a prior EEO complaint).
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 21, 2014
__________________
Date
1 The record reflects that the Agency makes reference to what appears to be an EEO settlement agreement which it identifies as an "MOU" that was executed on November 19, 2003. By letter dated October 11, 2012, Complainant alleged that the Agency breached the MOU. On June 11, 2013, the Agency acknowledged breach of the MOU, and informed Complainant that she could either request implementation of the MOU agreement or file a pre-complaint within 15 days of the notice. On July 19, 2013, the Agency notified Complainant that the reinstatement of her underlying complaint (that was resolved pursuant to the MOU) was not to include instances of reprisal after the date of execution of the MOU and that she had a right to file a separate complaint to address any alleged retaliatory actions that occurred after November 18, 2013. Complainant thereupon filed the instant formal complaint on December 27, 2013.
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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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