0120121433
06-12-2012
Edna M. McClary, Complainant, v. Ray Mabus, Secretary, Department of the Navy, Agency.
Edna M. McClary,
Complainant,
v.
Ray Mabus,
Secretary,
Department of the Navy,
Agency.
Appeal No. 0120121433
Agency No. DON 11-61141-03352
DECISION
Complainant filed a timely appeal with this Commission from the Agency's final decision dated January 17, 2012, dismissing a formal 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.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Police Officer, GS-0083-06, at the Agency's Washington Navy Yard facility in Washington, D.C.
On July 15, 2011, Complainant initiated contact with an EEO Counselor. Informal efforts to resolve her concerns were unsuccessful. On October 21, 2011, Complainant filed a formal complaint alleging that the Agency subjected her to discrimination on the bases of sex (female) and color (black) when:
1. in October 2010, she applied for a Sergeant Police Officer, GS-0083-07, position but was not selected for promotion;
2. in November 2010, she applied for a Sergeant Police Officer, GS-0083-07, position but was not selected for promotion;
3. in April 2011, she applied for a Sergeant Police Officer, GS-003-07, position but was not selected for promotion; and
4. in April 2011, the Chairman of the Fraternal Order of Police, Naval District Washington Labor Committee, accused Complainant of having a personal friendship with a former Security Director, and stated that the Security Director wanted to promote her because Complainant cleaned her home.
The Agency dismissed the formal complaint on the grounds of untimely EEO Counselor contact, pursuant to 29 C.F.R. � 1614.107(a)(2). The Agency found that Complainant's initial EEO Counselor contact of July 15, 2011, was more than forty-five days after all the matters identified in the subject claims.
The instant appeal followed. On appeal Complainant claims that she realized that she being was discriminated against in June 2011, when she was reviewed various papers and discovered the April 2011 letter written by the Union chairman (identified above in claim 4), and after speaking with other Police Officers about promotions being held up in June 2011. Complainant claimed that she timely contacted the EEO Counselor.
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R � 1614.105 (a) (1) states that an aggrieved person must initiate contact with a Counselor within 45 days of the date of the matter alleged to be discriminatory. Section 1614.107(a) (2) provides that an agency shall dismiss an entire complaint that fails to comply with the applicable time limits contained in 1614.105.
The record discloses that the most recent alleged discriminatory event occurred in April 2011, but Complainant did not initiate contact with an EEO Counselor until July, 15, 2011, which is beyond the forty-five (45) day limitation period. Complainant's claim that she found out the alleged discrimination in June 2011, when she was going through paper work and after speaking with other Police Officers is not persuasive enough to extend the time limit to contact an EEO Counselor. On appeal, Complainant has presented no persuasive arguments or evidence warranting an extension of the time limit for initiating EEO Counselor contact.
CONCLUSION
The Agency's final decision dismissing Complainant's formal complaint on the grounds of untimely EEO Counselor contact 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
June 12, 2012
__________________
Date
2
0120121433
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120121433