0120120747
10-25-2012
Kimberly S. Broadwater, Complainant, v. John M. McHugh, Secretary, Department of the Army, Agency.
Kimberly S. Broadwater,
Complainant,
v.
John M. McHugh,
Secretary,
Department of the Army,
Agency.
Appeal No. 0120120747
Agency No. ARAPG10JUN03832
DECISION
Complainant filed an appeal with this Commission from the Agency's decision dated October 7, 2010, 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. For the following reasons, the Commission AFFIRMS the Agency's final decision.
BACKGROUND
Complainant filed a formal complaint dated September 13, 2010, alleging that the Agency subjected her to discrimination and a hostile work environment on the basis of color (white) when the Deputy Chief of Staff for Personnel:
1. Denied Complainant's request for a non-competitive reassignment from Program Analyst, YA-0343-02, GS-11 level to a Human Resource Specialist, YA-201-02, GS-13 level on March 24, 2010;
2. Approved the non-competitive reassignment of Person A to a Human Resources Specialist, YA-201-02, GS-13 Level position on December 6, 2009. This action denied Complainant the opportunity to compete for the position;
3. Approved the non-competitive reassignment of Person B to a Team Leader position, YA-343-02, GS-13 Level, in the Recruitment Office on November 8, 2009. This action denied Complainant the opportunity to compete for the position;
4. Removed the Deployment Program, the VERAA/ISP Program, and the Intern/Student Program from Complainant's duties and responsibilities in November 2009. The Deputy Chief of Staff for Personnel also approved the non-competitive reassignments of Person A as the Program Manager for Deployments and the VERAA/SIP Program; and Person C to the Program Manager for the Intern/Student Program; and
5. Approved the non-competitive reassignment of Person D to a Career Program position, 201 series, Human Resource Specialist, GS-13 level and gave her a 5% pay increase on April 26, 2009. This action denied Complainant the opportunity to compete for the position.
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 Complainant told the EEO Counselor that the reason for delayed contact beyond the 45-day time frame was because she was trying to work the issue out with her supervisor. The Agency noted the correspondence with the supervisor ended in March 2010, and stated that contact with an EEO Counselor should have been initiated some time prior to May 10, 2010. The Agency noted that Complainant's initial contact with an EEO official did not occur until July 27, 2010, which was between 124 to 453 days after the alleged discriminatory incidents occurred.
On appeal, Complainant states that she tried to resolve the issue with her supervisor and then went to the Office of the Inspector General (IG) to address the issue. Complainant states that she had not been involved with this type of issue before and was not sure where to go. Complainant claims that once the IG told her on June 1, 2010, that this was a case for EEO to handle, it was at that time she felt she had been subject to discrimination. Complainant states that on June 6, 2010, she contacted Person X (Equal Employment Manager) and said she felt she was being subjected to discrimination.
In response to Complainant's appeal, the Agency argues that Complainant was clearly on notice and bound to explore the basis for actions that went back more than a year that she believed were unsatisfactory. The Agency argues that Complainant should have developed a reasonable suspicion of discrimination due to any one of the disputed reassignments and should have filed within the 45-day period of those disputed actions. The Agency notes that even if Complainant's June 7, 2010 electronic mail message to the Equal Employment Manager constituted initial EEO Counselor contact, this was still outside the 45-day filing period.
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 April 2009 and March 24, 2010. The record reveals that Complainant initially chose to pursue her complaint regarding the identified issues with the Agency and then with the IG prior to initiating EEO Counselor contact. Despite Complainant's contention that she was not sure where to go to pursue her complaint, the record reveals that in a March 24, 2010 electronic mail message, Complainant was informed by the Deputy Chief of Staff for Personnel that she had other avenues to pursue her concerns, including EEO. In a March 24, 2010 electronic mail message, Complainant stated "I am fully aware of avenues available to me, EEO, IG etc." In a responsive electronic mail message sent on March 24, 2010, the Deputy Chief of Staff for Personnel agreed to arrange a meeting with Complainant to address her concerns. However, in a March 25, 2010 electronic mail message, Complainant stated that at that time she preferred to allow the IG/EEO to work the issues. The record reveals that Complainant did not initiate her EEO complaint until at the earliest June 7, 2010, which was beyond the applicable limitations period. Even using a June 6, 2010 date Complainant references does not render the EEO Counselor contact as timely. There is no indication that the Agency misled or dissuaded Complainant in any way regarding her right to contact an EEO Counselor. Nor has Complainant claimed that she was unaware of the time limit or unaware of how to contact the EEO office. Upon review, we find Complainant has failed to provide an adequate justification for her delay in initiating EEO Counselor contact. Thus, we find the Agency properly dismissed Complainant's complaint for untimely 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
October 25, 2012
__________________
Date
2
01-2012-0747
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120120747