0120142366
12-03-2014
Complainant, v. Deborah Lee James, Secretary, Department of the Air Force, Agency.
Complainant,
v.
Deborah Lee James,
Secretary,
Department of the Air Force,
Agency.
Appeal No. 0120142366
Agency No. 9D1S13021
DECISION
Complainant filed a timely appeal with this Commission from the Agency's decision (FAD) dated May 2, 2014, 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 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 a Contract Specialist at the Agency's Space & Missile Systems Center facility in Los Angeles, California. On April 24, 2014, Complainant filed a formal complaint alleging that the Agency subjected her to discrimination on the bases of race (African-American) and age (51) when:
1. From December 21, 2010 Complainant has been subjected to harassment;
2. On an unspecified date, Complainant was not promoted.
The Agency characterized the claim differently, finding that Complainant was alleging only that she had not been promoted. The Agency dismissed the claim on the grounds that Complainant initially contacted the EEO Counselor with the same claim on December 21, 2012 and was issued a right to file notice (NRF) on February 11, 2013, but failed to timely file her Formal Complaint and the claim was closed on March 4, 2013. The Agency found that Complainant contacted the Counselor with the same claim on March 22, 2013. The Agency determined that since the claims were the same, the February NRF governed the timeliness of Complainant's Formal Complaint and her April 24, 2013 Formal complaint was therefore untimely pursuant to 29 C.F.R. �� 1614.107(a)(2) and 106(a)(b).
ANALYSIS AND FINDINGS
The regulation at 29 C.F.R. � 1614.106(a)(b) states that a complaint must be filed within 15 days of receipt of the right to file notice. The record shows that on December 21, 2012, Complainant contacted an EEO Counselor alleging harassment beginning in June 2010, including being told by her Supervisor that Complainant was "the lowest on the pole," being denied courses, and her Supervisor delaying or refusing to respond to Complainant's questions, among other things. The Complaint was given Agency No. 9D1S13010 and Complainant was issued a NRF on February 11, 2013. Complainant did not timely file a Formal Complaint under Agency No. 9D1S13010.
On March 22, 2013, Complainant again contacted an EEO Counselor. On this occasion, Complainant alleged that on or about March 14, 2013 her Supervisor had initiated paperwork for Complainant to be promoted from a GS-9 to a GS-11 but that "Department of Personnel would not process the paperwork." This Complaint was assigned Agency No. 9D1S13021. Complainant was issued another NRF on April 10, 2013 and filed her Formal Complaint on April 24, 2013.
In her Formal Complaint, Complainant repeated the harassment claims she originally made under Agency No. 9D1S13010 and also briefly mentioned the failure-to-promote claim. The Agency did not address the harassment claim in its FAD but found that Complainant was making the same allegation as in the closed claim under Agency No. 9D1S13010 and that therefore the NRF under that Agency number applied, thus making her Formal Complaint untimely.
With regard to the harassment claim, we note that under 29 C.F.R � 1614.107(a)(2) an Agency shall dismiss a complaint where the Complainant raises a matter in the Formal Complaint that was not brought to the attention of a Counselor and is not like or related to a matter that has been brought to the attention of a Counselor. Following a review of the record we find that Complainant's harassment claim is not like or related to the matters she raised before the Counselor during the Informal stage.
With regard to the failure to promote, we find that while the Agency found that the NRF issued on February 11, 2013 applied to this case because the claims were the same, we disagree. We note that Complainant alleged that she had been notified by her Supervisor on or about March 14, 2013 that he had submitted a request for her promotion but that it had been denied. Such a claim is different than the matters raised by Complainant before the Counselor under Agency No. 9D1S13010 which address harassment by her Supervisor. While Complainant also alleged she had been evaluated against the wrong "core docs," the Informal Complaint under the closed Agency No. 9D1S13010 does not refer to promotion. We note in this regard that Complainant could not have addressed the events of March 2013 in the closed complaint because that complaint was initiated in December 2012. We therefore find that Complainant's Formal Complaint in the instant complaint was timely-filed.
CONCLUSION
Following a review of the record, we find that Complainant's Formal Complaint was timely-filed but that her harassment complaint should be dismissed. We therefore REVERSE the FAD and REMAND the failure-to-promote claim for further processing in according with this decision and the Order below.
ORDER (E0610)
The Agency is ordered to process the remanded claim in accordance with 29 C.F.R. � 1614.108. The Agency shall acknowledge to the Complainant that it has received the remanded claim 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 (R0610)
This is a decision requiring the Agency to continue its administrative processing of your complaint. However, if you wish to file a civil action, you have the right to file such action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision. 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 filed your appeal with the Commission. 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. 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 3, 2014
__________________
Date
2
0120142366
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
5
0120142366