0120111988
08-18-2011
Nora E. Hassanpour, Complainant, v. Janet Napolitano, Secretary, Department of Homeland Security, (Federal Emergency Management Agency), Agency.
Nora E. Hassanpour,
Complainant,
v.
Janet Napolitano,
Secretary,
Department of Homeland Security,
(Federal Emergency Management Agency),
Agency.
Appeal No. 0120111988
Agency No. HS-10-FEMA-00144
DECISION
Complainant filed a timely appeal with this Commission from the Agency's
decision dated January 25, 2011, dismissing her Equal Employment
Opportunity (EEO) 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.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked
as a Local Hire at the Agency’s Voluntary Agency Liaison, Hurricane Ike
Recovery Office in Texas City, TX. She filed a formal complaint dated
June 1, 2010, alleging that the Agency subjected her to discrimination
on the basis of sex (female) when:
from January 21, 2010 through January 27, 2010, she was sexually harassed
by a male co-worker who told her he believed in people having affairs,
discussed his own extra-marital affairs, made extremely personal remarks
about her body, repeatedly asked her to lunch, and lured her into his
hotel room where he pulled her in for a hug.1
The Agency dismissed the complaint for failure to timely initiate EEO
counseling. It reasoned that Complainant did not initiate EEO counseling
until April 5, 2010, beyond the 45 calendar day time limit.
According to the counselor’s report, Complainant explained that
she delayed contact because she was upset. On September 24, 2010,
the Director of the Office of Civil Rights of FEMA gave Complainant
a 15 day opportunity to further explain her emotional state, and why
it prevented her from contacting an EEO counselor within 45 days of
the “incident.” In an undated response, Complainant explained a
delay, but strongly suggested her explanation regarded delaying beyond
15 days to respond to the Agency’s inquiry and the 15 day time limit
to file an EEO complaint, which she suggested was timely postmarked.
Complainant wrote she was very emotionally disturbed by the incident,
struggled to deal with the anxiety, and was not able to sleep at night due
to paranoid insomnia, and for this reason she moved in with her in-laws.
Complainant wrote that her fiancé was in a bad car accident where he
was seriously injured with a life threatening injury and hospitalized,
and she had to take care of her three children. She wrote that she could
not function in daily tasks and routines, but was now at the point where
she could sleep.
CONTENTIONS ON APPEAL
On appeal, Complainant explains her delays, but suggests she is referring
to delays in filing papers her EEO counselor asked her to submit after
she initiated EEO counseling. After writing about her difficulty with
receiving forms from the EEO counselor and getting in touch with her to
ask questions about them, Complainant writes she had not filed an EEO
before and did not know the procedure.
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). The Agency or Commission shall extend the
45 day time limit for reasons considered by the Agency or the Commission.
Complainant explained her delays for submitting paperwork after she
initiated contact with an EEO counselor, not for waiting until April 5,
2010, to contact an EEO counselor. She does not write she was unaware of
the 45 calendar day time limit. While no doubt some of Complainant’s
explanations about her emotional state applied to delaying until April
5, 2010, she has not shown she was incapacitated from timely initiating
contact with an EEO counselor during the relevant time period, i.e., up
to March 15, 2010. Shirley v. Department of Health and Human Services
(Indian Health Service), EEOC Appeal No. 0120080798 (Sept. 2, 2010).
She submitted narratives of work events through February 1, 2010, and
in her complaint indicated she left her department on April 2, 2010,
showing she worked part or all of the period up to March 15, 2010.
Because Complainant has not shown she was incapacitated from timely
initiating EEO counseling, the Agency’s dismissal 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
August 18, 2011
__________________
Date
1 Based on the counselor’s report, the Agency defined the sexual
harassment as occurring from January 21, 2010 through February 1, 2010,
and that the perpetrator physically forced an embrace and kiss upon
Complainant. In her complaint, Complainant wrote the sexual harassment
occurred from January 21, 2010 through January 27, 2010. In a separate
detailed account of what occurred in the hotel room, Complaint wrote
she was pulled in for a hug, and did not write she was kissed.
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0120111988
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120111988