0120182279
09-27-2018
Evelyn S,1 Complainant, v. Richard V. Spencer, Secretary, Department of the Navy, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Evelyn S,1
Complainant,
v.
Richard V. Spencer,
Secretary,
Department of the Navy,
Agency.
Appeal No. 0120182279
Agency No. DON186449801851
DECISION
Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's decision dated May 29, 2018, dismissing her complaint of unlawful employment discrimination in violation of 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 an Electrical Engineer, 0850, GS-13 at the Agency's Naval Surface Warfare Center facility in Philadelphia, Pennsylvania.
On May 18, 2018, Complainant filed a formal complaint alleging that the Agency subjected her to harassment and discrimination on the basis of age when, (1) on or about May 2013 (or third quarter, fiscal year (FY) 2013), on or about May 2015 (or third quarter, FY 2015), September 4, 2015, November 18, 201, March 8, 2016, March 21, 2016, April 4, 2018, April 18, 2016, May 9, 2016, May 20, 2016, June 2, 2016, June 10, 2016, June 29, 2016, July 6, 2016, July 21, 2016, and September 3, 2016, Complainant's supervisor made comments about Complainant's age and took actions towards terminating Complainant; and (2) on September 3, 2016, Complainant was terminated from her position as an electrical engineer. Upon termination, Complainant elected to participate in a negotiated grievance process. An arbitration decision in favor of the Agency was issued on February 23, 2018. Complainant initially contacted an EEO counselor on April 10, 2018.
The Agency dismissed the complaint, pursuant to 29 C.F.R. � 1614.107(a)(2), for untimely EEO Counselor contact. The Agency also dismissed the claim relating to termination pursuant to 29 C.F.R. � 1614.107(a)(4), as the same matter had been raised in a negotiated grievance process that permits claims of discrimination. In so doing, the Agency noted that the Collective Bargaining Agreement between NSWCPD and IFPTE Local 3 provides that matters covered under 29 C.F.R. � 1614 (actions related to prohibited discrimination) which also fall within the coverage of the grievance procedure may, at the discretion of the employee, if covered, be raised under the appropriate statutory procedure or the grievance procedure, but not both.
The instant appeal followed.
ANALYSIS AND FINDINGS
Timeliness of the Initial EEO 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 record discloses that the last alleged discriminatory event occurred on September 3, 2016, the effective date of Complainant's termination, but Complainant did not initiate contact with an EEO Counselor until April 10, 2018, which is well beyond the forty-five (45) day limitation period. Complainant utilized other procedures during the relevant period. The Commission has consistently held that the utilization of agency procedures, union grievances, and other remedial processes does not toll the time limit for contacting an EEO Counselor. See Ellis v. United States Postal Service, EEOC Appeal No. 01992093 (November 29, 2000). Additionally, the Commission has consistently held that a complainant must act with due diligence in the pursuit of his claim or the doctrine of laches may apply. See Becker v. United States Postal Service, EEOC Appeal No. 01A45028 (November 18, 2004) (finding that the doctrine of laches applied when complainant waited over two years from the date of the alleged discriminatory events before contacting an EEO Counselor); O'Dell v. Department of Health and Human Service, EEOC Request No. 05901130 (December 27, 1990). The doctrine of laches is an equitable remedy under which an individual's failure to pursue diligently his course of action could bar his claim. Complainant waited over nineteen (19) months from the date of the latest alleged discriminatory event before she contacted an EEO counselor in April 2018. She has not provided justification for extending or tolling the time limit.
Negotiated Grievance Procedure
EEOC Regulation 29 C.F.R � 1614.107(a)(4) provides that an agency shall dismiss an entire complaint where the complainant has raised the matter in a negotiated grievance procedure that permits allegations of discrimination. EEOC Regulation 29 C.F.R. � 1614.301(a) states that when a person is employed by an agency subject to 5 U.S.C. � 7121(d) and is covered by a collective bargaining agreement that permits claims of discrimination to be raised in a negotiated grievance procedure, a person wishing to file a complaint or grievance on a matter of alleged employment discrimination must elect to raise the matter under either part 1614 or the negotiated grievance procedure, but not both.
The record indicates that Complainant acknowledges that she raised the claim regarding her termination on September 3, 2016 through a negotiated grievance procedure. Further, the Agency provided evidence that the grievance procedure permits claims of discrimination and an election to raise the matter under either part 1614 or the grievance procedure, but not both. Upon review, we find the Agency correctly dismissed Complainant's claim relating to her termination because Complainant elected to file a grievance on the same matter.
Accordingly, the Agency's final decision dismissing Complainant's complaint is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0617)
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. A party shall have twenty (20) calendar days of receipt of another party's timely request for reconsideration in which to submit a brief or statement in opposition. See 29 C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9 � VII.B (Aug. 5, 2015). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission. Complainant's request may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. 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 agency's request must be submitted in digital format via the EEOC's Federal Sector EEO Portal (FedSEP). See 29 C.F.R. � 1614.403(g). 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 (Z0815)
If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant's Right to File a Civil Action for the specific time limits).
FOR THE COMMISSION:
______________________________ Carlton M. Hadden's signature
Carlton M. Hadden, Director
Office of Federal Operations
September 27, 2018
__________________
Date
1 This case has been randomly assigned a pseudonym which will replace Complainant's name when the decision is published to non-parties and the Commission's website.
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0120182279