0120152489
12-09-2015
Kristle L.,1 Complainant, v. Eric Fanning, Acting Secretary, Department of the Army, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Kristle L.,1
Complainant,
v.
Eric Fanning,
Acting Secretary,
Department of the Army,
Agency.
Appeal No. 0120152489
Agency No. ARSTEWART15APR01578
DECISION
On July 6, 2014, Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from a final Agency decision (FAD) dated June 4, 2014, dismissing her complaint of unlawful employment discrimination.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Licensed Practical Nurse at the Agency's Fort Stewart facility in Georgia.
On May 26, 2015, Complainant filed a formal complaint alleging that she was discriminated against based on reprisal for her prior protected equal employment opportunity (EEO) activity under an EEO statute that was unspecified in the record when she was forced to resign effective January 10, 2015.
In December 2014, an Agency Health Insurance Portability and Accountability Act (HIPAA) Privacy Officer determined that Complainant violated HIPAA, and recommended that she be terminated. On or about December 16, 2014, Complainant consulted with a Union Representative, who after looking into things advised Complainant that it would be in her best interest to resign rather than be terminated. By letter dated December 22, 2014, Complainant resigned effective January 10, 2015.
The Agency dismissed the complaint for failure to timely initiate EEO counseling. It reasoned the Complainant initiated contact with an Agency EEO Manager on April 1, 2015, beyond the 45 calendar day time limit to do so.
ANALYSIS AND FINDINGS
An aggrieved person must seek EEO counseling within 45 days of the date of the alleged discriminatory action, or in the case of a personnel action, within 45 days of the effective date of the action. 29 C.F.R. � 1614.105(a)(1) & .107(a)(2).
On appeal, Complainant argues that after submitting her letter of resignation on December 22, 2014, she sought guidance, and was "passed along" to the EEO Manager at the end of March or beginning of April 2015. She indicates that she contacted the Garrison Commander, then a Brigadier General who served as the Deputy Commanding General for the 3rd Infantry Division, Fort Stewart, and then another Brigadier General who served as the Commanding General of the Southern Regional Medical Command.
Complainant submits email correspondence she had with both Brigadier Generals. In an email to the first Brigadier General in early February 2015, Complainant requested a meeting with him concerning the alleged request she resign, and wrote that she was planning on filing an EEO complaint. In an email to the second Brigadier General in early March 2015, Complainant asked that she look into the alleged request that she resign, and asked her to respond since she needed to go head and file an EEO reprisal complaint. Complainant wrote that she had a previous open EEO case. In a response, the second Brigadier General indicated she would look into things, and if Complainant had a filing deadline she needed to meet, then to meet it. On March 6, 2015, this Brigadier General wrote Complainant that she should feel free to contact the EEO Manager, and provided contact information. Complainant submits emails showing she made such contact by March 30, 2015.
In opposition to the appeal, the Agency argues in part that Complainant was aware of the 45 calendar day time limit since in March 2014 she received her EEO rights which included this time limit in connection with her prior EEO case.
Complainant's contacts with Garrison Commander and two Brigadier Generals did not constitute EEO contact. In its FAD, the Agency found that Complainant initiated EEO contact on April 1, 2015. On appeal, Complainant indicates that she made the contact in late March or early April 2015. As the effective date of her resignation was January 10, 2015, initiating EEO contact in late March 2015 was beyond the 45 calendar day time limit. Complainant has not submitted adequate justification for extending the time limit, including has failed to show that she was no familiar with the EEO counseling process or its deadlines. The Commission has consistently held that the utilization of alternative 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).
Accordingly, the FAD is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0815)
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 tends 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 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, 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 (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
December 9, 2015
__________________
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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