0120131876
09-12-2013
Angela Y. Payne, Complainant, v. Chuck Hagel, Secretary, Department of Defense (Defense Commissary Agency), Agency.
Angela Y. Payne,
Complainant,
v.
Chuck Hagel,
Secretary,
Department of Defense
(Defense Commissary Agency),
Agency.
Appeal No. 0120131876
Agency No. DECA-00080-2013
DECISION
Complainant filed a timely appeal with this Commission from the Agency's decision dated March 22, 2013, 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 Store Worker, WG-4 at the Agency's Commissary facility in Fort Carson, Colorado.
Complainant contacted the EEO Counselor on February 12, 2013. When the matter could not be resolved informally, Complainant was issued a notice of right to file a formal complaint. On March 5, 2013, Complainant filed a formal complaint alleging that the Agency subjected her to discrimination on the bases of race (Black) and sex (female) when, since June 18, 2012, Complainant has not been placed into a permanent full-time 40-hour position.
The Agency dismissed the complaint pursuant to 29 C.F.R. �1614.107(a)(2) for untimely EEO Counselor contact. The Agency noted that Complainant contacted the EEO Counselor in February 2013, while the matter arose in June 2012. The Agency indicated that more than 45 days had lapsed. As such, the Agency dismissed the complaint.
Complainant appealed asserting that the matter has not been handled properly. She included a copy of a settlement agreement dated October 5, 2012, in which the parties agreed to resolve Complainant's prior EEO complaint by reassigning her to a Store Worker, WG-4, 32-hour position with the Produce Department. Complainant's appeal seems to indicate that she alleged breach of the settlement agreement by email dated October 9, 2012. The Agency issued a determination on November 8, 2012, finding that Complainant chose not to take the reassignment agreed to in the settlement agreement. As such, the Agency found that it tried to comply with the terms of the settlement agreement but it was Complainant who chose not to take the reassignment. The determination gave Complainant appeal rights to the Commission. Complainant failed to appeal the determination on breach. Complainant then argued that she just wanted to have her complaint processed and that she has not been able to do so.
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R. �1614.107(a)(2) states that the agency shall dismiss a complaint or a portion of a complaint that fails to comply with the applicable time limits contained in �1614.105, �1614.106 and �1614.204(c), unless the agency extends the time limits in accordance with �1614.604(c).
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. EEOC 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 her control from contacting the EEO Counselor within the time limit, or for other reasons considered sufficient by the agency or Commission.
Upon review, we find that the Agency properly dismissed the instant complaint. The record indicated that Complainant alleged that she was subjected to discrimination in June 2012, but did not contact the EEO Counselor until February 2013, well beyond the 45 day time limit.
We note on appeal that Complainant also included documents pertaining to her settlement agreement resolving her prior EEO complaint. Based on a review of the appeal, the crux of Complainant's appeal was that her prior complaint has never been addressed. The determination on the claim of breach of the settlement agreement clearly stated that if Complainant wished to appeal the Agency's decision, she could do so with the Commission. EEOC Regulation 29 C.F.R. � 1614.504(b) requires a complainant to file an appeal within 30 days of receiving an agency's letter of determination. We find that Complainant failed to do so. As such, we find that it is inappropriate for Complainant to now, in response to her appeal of another final Agency decision involving a new EEO complaint, to raise her claim of breach of the settlement agreement from November 2012. We find this to be raised with the Commission in an untimely manner and the Commission shall not address it.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency's final decision dismissing the complaint at hand.
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
September 12, 2013
__________________
Date
2
0120131876
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120131876