0120121438
06-01-2012
Elizabeth C. Tyree, Complainant, v. Ray H. LaHood, Secretary, Department of Transportation, Agency.
Elizabeth C. Tyree,
Complainant,
v.
Ray H. LaHood,
Secretary,
Department of Transportation,
Agency.
Appeal No. 0120121438
Agency No. 2011-24128-RITA-01
DECISION
Complainant filed an appeal with this Commission from the Agency's final decision dated December 16, 2011, dismissing a formal complaint of unlawful employment discrimination.
BACKGROUND
During the period at issue, Complainant worked as an Engineer through the Federal Career Internship Program (FCIP) at the Agency's Volpe Center in Cambridge, Massachusetts. On November 21, 2011, Complainant filed a formal EEO complaint claiming that the Agency subjected her unlawful discrimination on the bases of race, color, and sex.
In its December 16, 2011 final decision, the Agency determined that Complainant's formal complaint was comprised of the following claim:
As recently as July 2011, the Agency failed to execute a Cooperative Research and Development Agreement (CRADA) with [Complainant] so that [she] could have access to data to complete [her] Master's thesis post FCIP employment.
The Agency dismissed this matter for failure to state a claim, finding that Complainant was neither an Agency employee nor an applicant for Agency employment.
In addition, the Agency stated that any claims concerning Complainant's internship, which ended on February 11, 2011, are dismissed on the grounds of untimely EEO Counselor contact. The Agency states that Complainant did not contact an EEO Counselor until July 2011,1 beyond the applicable time limit.
CONTENTIONS ON APPEAL
On appeal, Complainant asserts that her termination from the Agency on February 11, 2011 was due to discrimination. Complainant further asserts that the proposal to put a CRADA in place "was nothing more than interference and/or delay tactic so that I would be outside the 45 day time limit when the CRADA fails." Complainant asserts that the Agency did not have any intent of going through with the CRADA. Complainant also argues that the EEO Counselor's Report contains misrepresentations. Finally, Complainant states "the 45-day limit should also be extended for [her] claim because it was not overtly obvious that [her] termination was due to discrimination and the evidence may not appear as discrimination when looked at in isolation."
In response, the Agency requests that we affirm its final decision. The Agency initially asserts that Complainant's appeal to the Commission is untimely. Specifically, the Agency states "the appeal was filed on February 1, 2012, 44 days after the [final agency decision] was sent by certified mail. [Complainant] merely alleges, without further evidence, that she received the Agency decision on January 4, 2012." The Agency reasserts that Complainant's EEO contact occurred months after her internship ended. The Agency also argues that it properly dismissed her claim involving the Agency's alleged failure to execute a CRADA for failure to state a claim. The Agency states that "a CRADA is not intended to extend an individual's employment; rather, it is an agreement between an authorized federal agency and an institution or other entity to achieve a mutually beneficial research and development objectives. In the present case, any CRADA would have had to be executed with the [Complainant's named school], at which Complainant was a graduate student. The alleged failure to execute a CRADA...was simply not an act or omission involving a federal employee. Even if the Complainant were [an Agency employee]...the Agency's alleged failure to execute a CRADA is not an employment action."
In reply, Complainant asserts that her February 1, 2012 appeal is timely. Complainant asserts that the CRADA was used by the Agency as an employment vehicle in an effort to use her as an unpaid worker.
ANALYSIS AND FINDINGS
Timeliness of Appeal
Upon review of the record, we find Complainant's February 1, 2012 appeal to be timely filed. Complainant, on her appeal form, asserts that she received the Agency's final decision on January 4, 2012.2 While the Agency asserts that Complainant has not submitted proof that she received the final decision on that date, we note that where as here, there is an issue of timeliness, "[a]n agency always bears the burden of obtaining sufficient information to support a reasoned determination as to timeliness." See Guy v. Dep't of Energy, EEOC Request No. 05930703 (Jan. 4, 1994) (quoting Williams v. Dep't of Defense, EEOC Request No. 05920506 (Aug. 25, 1992)). We find that the Agency has not met this burden.
Complainant's Termination and Incidents Preceding her Termination
The Agency properly dismissed the claim involving Complainant's termination from the FCIP on the grounds of untimely EEO Counselor contact. 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. 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. Dep't of the Navy, EEOC Request No. 05970852 (Feb. 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 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 she was prevented by circumstances beyond her control from contacting the Counselor within the time limits, or for other reasons considered sufficient by the agency or the Commission.
In the instant matter, we find that Complainant reasonably suspected discrimination at the time of her termination. In her statement on appeal, Complainant asserts that before her termination, she informed a named manager (M1) that his decision to terminate her was unfair and not based on actual performance. We remind Complainant that the time limitation is triggered when she reasonably suspected discrimination not when all facts that support a charge of discrimination become apparent. Thus, we find that Complainant should have contacted an EEO Counselor regarding her termination within 45 days of February 11, 2011.
Agency's Delay in Executing the CRADA
The Agency properly dismissed the matter regarding the execution of the CRADA, for failure to state a claim. The regulation set forth at 29 C.F.R. � 1614.107(a)(1) provides, in relevant part, that an agency shall dismiss a complaint that fails to state a claim. An agency shall accept a complaint from any aggrieved employee or applicant for employment who believes that he or she has been discriminated against by that agency because of race, color, religion, sex, national origin, age or disabling condition. 29 C.F.R. �� 1614.103, .106(a). We find that with respect to the CRADA claim, Complainant was not a federal employee or applicant for federal employment. Complainant's employment with the Agency ended on February 11, 2011. Complainant, in her attachment, to her formal complaint states that the CRADA would be in place between her named school and the Agency and that the CRADA would be necessary for her to continue to work on a certain Agency project on an unpaid basis with access to Agency data.3
CONCLUSION
For the reasons stated herein, we AFFIRM the Agency's final decision dismissing Complainant's formal 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
June 1, 2012
Date
1 While the Agency, in its final decision, lists July 2011 as Complainant's initial EEO contact date, the EEO Counselor's Report lists August 10, 2011 as the date of her initial EEO contact.
2 We note that Complainant submitted in her March 13, 2012 submission to the Commission a copy of a USPS printout which Complainant asserted reflects that she received the final agency decision on January 4, 2012. The USPS printout is for Tracking No. 70100290000021242684 indicating that an item was delivered on January 4, 2012 in "Cambridge, MA 02141." The Agency in its final decision lists the USPS tracking number as 70100290000021242624. We are unable to ascertain from the record if the final decision contained the incorrect USPS tracking number or if the USPS printout that Complainant provided was for another document/item rather than the Agency's final decision. Nevertheless, as set forth above, the Agency has not established that Complainant's appeal is untimely.
3 Complainant, in her statement on appeal, asserts that the CRADA would have allowed her thesis to stay on track though her access to Agency data.
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0120121438
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120121438