0120162354
03-06-2017
Alejandrina L.,1 Complainant, v. Loretta E. Lynch, Attorney General, Department of Justice (Drug Enforcement Administration), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Alejandrina L.,1
Complainant,
v.
Loretta E. Lynch,
Attorney General,
Department of Justice
(Drug Enforcement Administration),
Agency.
Appeal No. 0120162354
Agency No. DEA201301093
DECISION
Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's decision dated June 13, 2016, 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.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Special Agent at the Agency's Atlanta Field Office, Drug Enforcement Administration (DEA) facility in Atlanta, Georgia.
On September 9, 2013, Complainant filed a formal complaint alleging that the Agency subjected her to discrimination on the bases of sex (female) and reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 when:
1. in April 2013, she was not selected for a Criminal Investigator, GS-13, position in Barbados, advertised under Vacancy Announcement CMB-13-40V; and
2. between April 30, 2013 and July 29, 2013, DEA employees and officials attempted to discourage Complainant from filing an EEO complaint.
The pertinent record shows that Complainant was a Special Agent who had worked for the DEA for more than 25 years. On December 7, 2012, Complainant applied for the position of Criminal Investigator, GS-1811-13, Operations Division, in the Barbados Country Office. On January 23, 2013, Complainant received an email indicating that Complainant was on the Best Qualified List. Complainant was required to obtain comments of support from her chain of command. Complainant submitted the required letters of support. On April 30, 2013, Complainant contacted a Human Resources Specialist to learn the status of her application and was informed that a selection had been made and that she had not been selected. Later that day, Complainant also learned the name of the selectee.
On May 1, 2013, Complainant traveled to Chicago, Illinois, to tend to her ailing mother. Complainant's mother died on May 10, 2013. While in Chicago, Complainant also fell ill with pneumonia and was hospitalized for several days. Complainant was on leave from May 1 through May 31, 2013. However, she returned to the office and had full days in the office between June 4, 2013 and June 14, 2013.
Complainant called DEA's headquarters EEO Officer on June 13, 2013. He was away due to the death of his own mother and did not return to work until the week of June 24, 2013. Complainant's call was answered by the EEO Officer's assistant, who informed her of his absence. Complainant indicates she simply left a message for the EEO Officer to call her, but does not allege that she told the assistant that she felt she had been discriminated against or that she wanted to file an EEO complaint or talk to an EEO counselor.
Complainant indicated that she finally reached the EEO Officer on June 28, 2013, after he returned to the office. He referred her to the EEO counselor assigned to her office, a counselor already known to Complainant.2 According to Complainant, between June 28 and July 8, 2013, she spoke numerous times to the EEO Counselor, who she says warned her of possible management retaliation if she filed an EEO complaint. Complainant eventually filed her formal complaint on September 9, 2013.
The Agency accepted the complaint for investigation, but transferred the complaint to another agency due to the allegations involving its own EEO Officer, staff and the Atlanta EEO counselor. When the investigation was not completed within the regulatory timeframe, Complainant requested a hearing with the EEOC's Atlanta District Office. She asked the AJ to sanction the Agency for its failure to comply with the regulatory deadlines for investigation and moved for a default judgment.
On May 16, 2014, the AJ ordered the Agency to produce the Report of Investigation and complaint file by June 2, 2014.
The Agency responded to Complainant's motion for a default judgment with a motion for summary judgment on June 5, 2014. The AJ granted the Agency's motion in part on October 27, 2015. The AJ found that Complainant did not initiate EEO counseling in a timely fashion concerning her non-selection, and therefore dismissed claim 1 and denied the request for sanctions. The AJ, however, reserved Complainant's allegation concerning being discouraged from utilizing the EEO process for hearing. However, before the hearing was held, the parties entered a settlement agreement resolving this second claim.
The Agency adopted the AJ's decision and issued a final decision dismissing the non-selection claim for untimely EEO contact. The Agency also dismissed claim 2 reasoning that the allegation had been the subject of a settlement agreement that resolved the issue.
The instant appeal followed.
ANALYSIS AND FINDINGS
As an initial matter, it is undisputed that Complainant and the Agency resolved the matter raised in claim 2 of her complaint with a settlement agreement. Therefore, we will not address this claim any further.
EEOC Regulation 29 C.F.R. � 1614.105(a)(1) requires that a complaint of discrimination be brought to the attention of an EEO Counselor within forty-five (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. Here, pursuant to 29 C.F.R. � 1614.107(b)(2), the AJ dismissed claim 1 as untimely raised.3
The record clearly indicates the trigger date for Complainant's obligation to seek EEO counseling on her non-selection to the Barbados position. It is undisputed that Complainant received notice that she had not been selected for the position in question on April 30, 2013. On that same date, she learned the name of the selectee. Therefore, Complainant had until June 14, 2013, to initiate a request for EEO counseling. However, the AJ determined that Complainant did not initiate EEO contact by exhibiting an intent to begin the complaint process until beyond the 45-day limitation period.
Complainant argues that she attempted to contact the EEO Officer at headquarters on June 13, 2013, one day before the expiration of the limitation period. However, she concedes that she only reached his assistant, was told he was out of the office for an extended period, and only left a message to call her. We do not find this was enough to constitute the contact contemplated by 29 C.F.R. � 1614.105(a)(1). The Commission has held 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. United States Postal Service, EEOC Request No. 05950933 (July 9, 1996). Here, Complainant did not exhibit the necessary intent to begin the complaint process. She does not allege that she told the assistant that she wanted to file a complaint or seek counseling, or even that she believed she was the victim of discrimination. She did not do the most reasonable thing - which was to ask the assistant who else she could speak with concerning a discrimination matter. Therefore, we find that Complainant chose to wait for the EEO Officer to return her telephone call, which he did on June 28, 2013. It was on this date that Complainant first exhibited an intent to enter to EEO process and the EEO Officer immediately referred her to the EEO counselor in her office. This, however, was beyond the 45-day limitation period.
Complainant argues that she contacted or attempted to contact other individuals in Human Resources in Virginia, but proffers no indication that she communicated an intent to enter to EEO complaint process during these contacts. Moreover, she concedes on appeal that the one official she actually spoke with occurred on June 17, 2013, beyond the 45-day period. Therefore, we again do not find these contacts to be sufficient to meet the � 1614.105(a)(1) standard.
The regulations also provide that the 45-day time limit shall be extended if Complainant shows that she was not notified of the time limits and was not otherwise aware of them, that she did not know and reasonably should not have known that the discriminatory matter or personnel action occurred, that despite due diligence she was prevented by circumstances beyond her control from contacting the counselor within the time limits, or for such other reason considered sufficient by the Commission.
Here, Complainant essentially argues that any delay on her part in seeking EEO counseling should be excused for two reasons. First, she notes her own physical and mental incapacity during this time period. The Commission has consistently held, in cases involving physical or mental health difficulties, that an extension is warranted only where an individual is so incapacitated by her condition that she is unable to meet the regulatory time limits. See Davis v. United States Postal Service, EEOC Request No. 05980475 (August 6, 1998); Crear v. United States Postal Service, EEOC Request No. 05920700 (October 29, 1992). We find in the instant case that, although we are sympathetic to the difficulties endured by Complainant, that she has not met this standard. While Complainant was on leave for the month of May, the record shows she was back at work in early June, in sufficient time to make timely EEO counseling contact.
With regard to the absence of the EEO Officer, a circumstance she asserts was beyond her control, we have already determined that it was unreasonable of Complainant to wait for his return rather than inquire of his assistant who else might be of assistance to her. Complainant argues that she wanted to seek the assistance of the headquarters EEO Officer rather than the EEO Counselor in Atlanta because she had been told by coworkers that the Atlanta counselor would report the contact to Atlanta management, which could have a negative impact on her career. She asserts this "had a chilling effect" on her ability to communicate with the counselor in her field office. In general, the Commission has not found that fear of retaliation adequately justifies a delay in seeking EEO counseling. Here, we do not find anything about the circumstances presented that would warrant an exception to this position. While Complainant has explained why she wanted to pursue her claim with EEO officials at the Agency's headquarters rather than in Atlanta, she has not provided adequate explanation for her decision not to pursue the matter with other staff members in the Agency's headquarters EEO office once she learned the EEO Officer was out on leave.
In sum, after careful consideration of arguments of the parties, we AFFIRM the Agency's adoption of the AJ's dismissal of claim 1 of the complaint for untimely EEO counselor contact.
As we are affirming the dismissal, we decline to address Complainant's other arguments concerning the AJ's denial of Complainant's motion for sanctions.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0416)
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. The requests may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. 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
March 6, 2017
__________________
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.
2 The EEO Counselor was the same person who had told Complainant the name of the selectee on April 30, 2013, during a casual conversation unrelated to EEO counseling.
3 29 C.F.R. � 1614.109(b) provides that EEOC administrative judges may dismiss complaints pursuant to � 1614.107, on their own initiative or upon an agency's motion. While the parties and the AJ referred to the AJ's action as a decision by summary judgment, we find that it is more appropriately characterized as an order of dismissal as authorized by � 1614.109(b).
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