0120113654
12-05-2012
Josephine Nyarko, Complainant, v. Ray Mabus, Secretary, Department of the Navy, Agency.
Josephine Nyarko,
Complainant,
v.
Ray Mabus,
Secretary,
Department of the Navy,
Agency.
Appeal No. 0120113654
Agency No. MC 11-00264-02561
DECISION
Complainant filed an appeal with this Commission from the Agency's decision dated July 5, 2011, 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. For the following reasons, the Commission AFFIRMS the Agency's final decision.
BACKGROUND
Complainant was employed as a Child and Youth Program Assistant at the Child Development Center (CDC), Marine Corps Community Services (MCCS), in Quantico, Virginia. In December 2008, Complainant injured her back while attempting to lift a child. Thereafter, Complainant had lifting restrictions and was assigned to work light duty, which involved working two hours a day while the children napped. In 2009, Complainant went through the Agency's reasonable accommodation process and was reassigned to work as a Sales Associate at the Marine Mart, a convenience store on the Marine Corps Base Quantico on February 3, 2009. Thereafter, Complainant reinjured her back and received further medical restrictions. Complainant was then reassigned to work at the Main Exchange in March 2010. In November 2010, Complainant was reassigned to a permanent position in the men's department as a Sales Associate at the Marine Corps Exchange. On March 7, 2011, Complainant was terminated, for failure to work.
Complainant filed a formal complaint dated May 31, 2011, alleging that the Agency subjected her to discrimination on the bases of race (African-American), sex (female), disability (back injury), and in reprisal for prior protected EEO activity when:
1. On November 2, 2009, the MCCS CDC personnel reduced Complainant's work hours from eight hours per day, to two hours per day.
2. On February 3, 2010, Complainant was reassigned to a sales associate position at the Marine Mart 7 Day Store, which did not meet the needs of her reasonable accommodation, and as a result, she reinjured herself.
3. On March 10, 2010, Complainant applied for a permanent GS-4 position with full time benefits, but she was not selected.
4. On September 30, 2010, (per management it was March 31, 2010), Complainant was reduced in grade from a GSE-4, to an NF-1; after 30 days from the date of the assignment, her pay was reduced from $14.59 per hour to $8.25 per hour.
5. On November 21, 2010, Complainant's work hours were reduced to 19 hours per week, which continued through the date of her termination.
6. On February 14, 2011, Complainant alleged that MCCS CDC personnel determined that sufficient medical documentation was not received to grant her reasonable accommodation, and per management, she refused to work.
7. On March 7, 2011, Complainant was terminated from employment with MCCS.
8. On December 9, 2008, through February 14, 2011, Complainant was harassed by Person 1, Person 2, and Person 3 when they constantly requested that she produce multiple copies of medical documentation, even after copies were provided.
9. Complainant was verbally assaulted by Person 3 when she repeatedly threatened that if Complainant did not perform her tasks (despite having provided medical documentation limiting her abilities), that she would be terminated. Complainant alleged that this statement was vocalized continuously and in front of her peers.
The Agency dismissed Complainant's complaint pursuant to 29 C.F.R. � 1614.107(a)(2), for untimely EEO Counselor contact. The Agency noted that the latest alleged incident of discrimination occurred on March 7, 2011; however, Complainant did not contact the EEO Office until April 28, 2011. The Agency also noted that the record contains certification showing Complainant attended EEO training where she would have been informed of the 45-day timeframe for making EEO Counselor contact.
On appeal, Complainant, through her current non-attorney representative, states that she contacted Person A, an EEO Counselor, on February 11, 2011, upon her receipt of the Proposed Notice of Termination. She claims Person A did not advise her of her EEO rights. Additionally, Complainant states she contacted Person A on March 14, 2011, regarding her Notice of Termination. She states that Person A again failed to inform her of her EEO rights. Complainant argues that her February 11, 2011 and March 14, 2011 contact with Person A satisfied the pre-complaint processing standards for informal EEO Counselor contact.
In response to Complainant's appeal, the Agency notes that on February 18, 2010, Complainant contacted the EEO Office and spoke with Person A. The Agency notes that Complainant and her attorney representative at the time requested to engage in the Alternative Dispute Resolution process (ADR). The Agency stresses that Complainant did not mention the EEO process nor did she express any desire to initiate a complaint. The Agency explains that mediation was scheduled but at the last minute, it was canceled by Complainant and her attorney.
The Agency states that on February 15, 2011, after receiving a Notice of Proposed Termination, Complainant sent a memorandum to Person A from the EEO office, requesting that the agency participate in ADR. The Agency noted that the memorandum did not mention either discrimination or Complainant's desire to file an EEO complaint. The Agency notes it declined to participate in mediation at that time. The Agency notes that on March 4, 2011, Complainant's attorney sent an electronic mail message to Person A expressing his dissatisfaction with the Agency's denial of mediation. The Agency notes the electronic mail message states, "This pattern of harassment might also be the basis for an EEO complaint, for which I will be advising my client." Again, the Agency notes that Complainant's attorney expressed no desire to file a complaint, but merely said he would speak to his client about it.
The Agency states there was no further contact with Person A until Complainant and her new representative met with Person A on April 28, 2011. The Agency notes that Complainant's representative asked that Person A send her the forms necessary to file an EEO complaint via electronic mail. The Agency notes Person A sent the forms and they were returned to her on May 2, 2011.
The Agency notes it has EEO posters on its premises which state that an employee must initiate a complaint within 45 days of occurrence. Furthermore, the Agency notes that Complainant attended EEO training on October 14, 2009. The Agency states that this training stressed the requirement of contacting an EEO Counselor within 45 days of the discriminatory incident.
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R. �1614.105(a)(1) provides that an aggrieved person must initiate contact with an EEO Counselor within 45 days of the date of the matter alleged to be discriminatory or, in the case of a personnel action, within 45 days of the effective date of the action. EOC Regulation 29 C.F.R. �1614.105(a)(2) allows the agency or the Commission to extend the time limit if the complainant can establish that complainant was not aware of the time limit, that complainant did not know and reasonably should not have known that the discriminatory matter or personnel action occurred, that despite due diligence complainant was prevented by circumstances beyond (his or her) control from contacting the EEO Counselor within the time limit, or for other reasons considered sufficient by the agency or Commission.
In the present case, the alleged discriminatory incidents occurred between December 9, 2008, and March 7, 2011, the date Complainant was terminated. Complainant states, without dispute from the Agency, that she received the notice of termination on March 12, 2011. We find Complainant suspected or reasonably should have suspected discrimination at the latest, by the time she received the termination letter.
Moreover, we note Complainant does not dispute the Agency's contention that she attended EEO training on October 14, 2009. Additionally, the Agency provides a Student Summary Inquiry confirming that Complainant attended and completed EEO training on October 14, 2009. The Agency supplies copies of the slides used during this training which included information on the 45-day time frame for initiating EEO Counselor contact. Thus, we find Complainant had constructive knowledge of the applicable limitations period.
The record reveals that in February 2010, Complainant contacted Person A, who served as both an EEO Counselor and the ADR Program Manager. In a letter from Complainant's attorney submitted in February 2010, the attorney alleged that the Agency was not accommodating Complainant under the Longshore and Harbor Worker's Compensation Act (LHWCA). The attorney noted that Complainant demands the Agency reconsider its placement of Complainant under the terms of the employment contract ADR procedure. The attorney also stated he was notifying the Agency of Complainant's "intent to file a grievance under the provisions of the Collective Bargaining agreement, for harassment and arbitrary reduction in hourly wage." Finally, the attorney noted that Complainant was notifying the Agency that "she will file a claim for Retaliatory Termination, pursuant to the LHWCA, if Employer dismisses her." The record reveals that both parties agreed to mediate the dispute; however, according to a March 12, 2010 electronic mail message the mediation was subsequently postponed.
Thereafter, on February 15, 2011, Complainant sent an electronic mail message to Person A requesting ADR to resolve her denial of reasonable accommodation of her medical limitations for her work related injury. In a February 28, 2011 electronic mail message, Person A informed Complainant that the Agency declined to participate in mediation.
In a March 4, 2011, electronic mail message to Person A, Complainant's attorney stated that Complainant "has certain rights under the bargaining agreement and that is the basis for her ADR request." The attorney noted that the Agency should stop harassing Complainant with respect to her requests for accommodation. The attorney noted that "this pattern of harassment might also be the basis for an EEOC complaint, for which I will be advising my client." The attorney also stated that any subsequent termination of Complainant will result in his filing a "retaliatory dismissal" claim pursuant to the Longshore Act.
The record reveals there was no further contact between Complainant and the EEO Office until April 28, 2011, when Complainant asked Person A to send her, via electronic mail, the forms necessary to file an EEO complaint.
As to Complainant's contentions regarding her February and March 2011 contact with Person A, the Commission notes that it is well-settled that in order to establish EEO Counselor contact, an individual must contact an agency official logically connected to the EEO process and exhibit an intent to begin the EEO process. See Allen v. U.S. Postal Service, EEOC Request No. 05950933 (July 9, 1996). EEO Counselor contact, for purposes of tolling the time limit, requires at a minimum that the complainant intends to pursue EEO counseling when he initiates EEO contact. See Snyder v. Dep't of Def., EEOC Request No. 05901061 (November 1, 1990); Menard v. Dep't of the Navy, EEOC Appeal No. 01990626 (January 5, 2001), request for reconsideration denied, EEOC Request No. 05A10279 (May 9, 2001). In the present case, the record reveals that Complainant began communicating with Person A, an EEO Counselor, as early as February 2010, and then again in February and March 2011. However, the record reveals that Complainant was contacting Person A to pursue ADR on her workplace concerns. Specifically, we note that in a March 4, 2011 electronic mail message, Complainant's attorney noted that the Agency's actions "might be the basis for an EEOC complaint, for which [he] will be advising [his] client" which we find confirms that Complainant had not yet initiated EEO Counselor contact. We find the record contains no evidence that Complainant exhibited any intent to pursue the EEO process prior to April 28, 2011, which was beyond the applicable limitations period. On appeal, Complainant has presented no persuasive arguments or evidence warranting an extension of the time limit for initiating EEO Counselor contact.
CONCLUSION
Accordingly, the Agency's final decision 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
December 5, 2012
__________________
Date
2
01-2011-3654
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120113654