0120120943
04-30-2012
Jana Perez,1 Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.
Jana Perez,1
Complainant,
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120120943
Agency No. 200P05012011103878
DECISION
Complainant filed a timely appeal with this Commission from the Agency's decision dated November 18, 2011,2 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
At the time of events giving rise to this complaint, Complainant worked as a Budget Analyst at the Agency's VAMC facility in Albuquerque, New Mexico.
On August 20, 2011, Complainant filed a formal complaint alleging that the Agency subjected her to discrimination on the bases of race (Caucasian) and disability when: (1) from February/March 2010 through September 2010, the Administrative Officer assigned Complainant the duties of the former business manager; (2) from September 2010 through June 27, 2011, the Co-Director, Behavioral Healthcare, and the Administrative Officer assigned Complainant the duties of the "Contracting Officer's Technical Representative"; (3) on May 8, 2011, the Co-Director yelled at Complainant in front of the Administrative Officer; (4) on May 11, 2011, the Co-Director was rude to Complainant during a confrontation about her being instructed to begin a contract to purchase a house; (5) subsequent to the May 11, 2011 incident, the Business Manager was told by the Co-Director to verbally counsel Complainant about the May 11, 2011 incident on "confrontational" emails, but the Business Manager refused; (6) on June 2, 2011, Complainant learned that the Co-Director was keeping a file on her in an effort to get her "written up"; (7) on August 16, 2011, the Co-Director and another named management official assigned the Complainant to assist in the "spending plan" to purchase furniture; (8) on September 14, 2011, the Complainant learned that her request for a transfer to another area had been denied; and (9) on an unspecified date, the Co-Director accused the Complainant of not managing her time wisely.
The Agency dismissed the complaint, pursuant to 29 C.F.R. � 1614.107(a)(2), on the grounds of untimely filing of the formal complaint. In its decision, the Agency indicated that while Complainant did not specifically raise incidents 5, 7, and 8 with the EEO counselor, she did include them in her formal complaint and they were like and related to the other matters discussed in counseling.
ANALYSIS AND FINDINGS
The regulation set forth at 29 C.F.R. � 1614.107(a)(2) states, in pertinent part, that an agency shall dismiss a complaint which fails to comply with the applicable time limits contained in 29 C.F.R. � 1614.106(b) which, in turn, requires the filing of a formal complaint within fifteen (15) days of receiving the notice of the right to do so.
The record discloses that Complainant received the notice of right to file a formal complaint on July 27, 2011. Although the notice indicated that Complainant had to file a formal complaint within fifteen (15) calendar days of its receipt, Complainant did not file her formal complaint until August 20, 2011, which is beyond the limitation period. Complainant conceded she received the notice on July 27, but said she needed time to make sure that she filled out every line as needed. We find that this does not constitute adequate justification to warrant an extension of the time limit for filing the complaint. Accordingly, the Agency's dismissal of claims 1-7 and 9 was proper.
However, despite the Agency's assertions to the contrary, claim 8, which concerns a denial of a transfer request and occurred on September 14, 2011, had not yet happened when Complainant received her notice of right to file a formal complaint or when she actually filed her complaint in August 2011. While the Agency does not explain how it came to be part of this complaint, we can only assume it was a later added amendment. We conclude that there is no evidence of untimeliness concerning this claim, and the Agency should process it as a separate complaint. Therefore, claim 8 is REMANDED to the Agency for further processing in accordance with the following Order.
ORDER (E0610)
The Agency is ordered to process the remanded claim (claim 8 - denial of transfer request) in accordance with 29 C.F.R. � 1614.108 et seq. The Agency shall acknowledge to the Complainant that it has received the remanded claims within thirty (30) calendar days of the date this decision becomes final. The Agency shall issue to Complainant a copy of the investigative file and also shall notify Complainant of the appropriate rights within one hundred fifty (150) calendar days of the date this decision becomes final, unless the matter is otherwise resolved prior to that time. If the Complainant requests a final decision without a hearing, the Agency shall issue a final decision within sixty (60) days of receipt of Complainant's request.
A copy of the Agency's letter of acknowledgment to Complainant and a copy of the notice that transmits the investigative file and notice of rights must be sent to the Compliance Officer as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0610)
Compliance with the Commission's corrective action is mandatory. The Agency shall submit its compliance report within thirty (30) calendar days of the completion of all ordered corrective action. The report shall be submitted to the Compliance Officer, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC 20013. The Agency's report must contain supporting documentation, and the Agency must send a copy of all submissions to the Complainant. If the Agency does not comply with the Commission's order, the Complainant may petition the Commission for enforcement of the order. 29 C.F.R. � 1614.503(a). The Complainant also has the right to file a civil action to enforce compliance with the Commission's order prior to or following an administrative petition for enforcement. See 29 C.F.R. �� 1614.407, 1614.408, and 29 C.F.R. � 1614.503(g). Alternatively, the Complainant has the right to file a civil action on the underlying complaint in accordance with the paragraph below entitled "Right to File A Civil Action." 29 C.F.R. �� 1614.407 and 1614.408. A civil action for enforcement or a civil action on the underlying complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c) (1994 & Supp. IV 1999). If the Complainant files a civil action, the administrative processing of the complaint, including any petition for enforcement, will be terminated. See 29 C.F.R. � 1614.409.
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 (T0610)
This decision affirms the Agency's final decision/action in part, but it also requires the Agency to continue its administrative processing of a portion of your complaint. 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 on both that portion of your complaint which the Commission has affirmed and that portion of the complaint which has been remanded for continued administrative processing. In the alternative, you may file a civil action after one hundred and eighty (180) calendar days of the date you filed your complaint with the Agency, or your appeal with the Commission, until such time as the Agency issues its final decision on your complaint. 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
April 30, 2012
__________________
Date
1 Complainant also uses the last name of Beasley.
2 Although the FAD carries a date of October 13, 2011, the record contains an email indicating Complainant was given official notification and receipt of the document on November 18, 2011.
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0120120943
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120120943