0120130884
06-06-2013
Felicia M. Beaulieu, Complainant, v. Ray Mabus, Secretary, Department of the Navy, Agency.
Felicia M. Beaulieu,
Complainant,
v.
Ray Mabus,
Secretary,
Department of the Navy,
Agency.
Appeal No. 0120130884
Agency No. 12-00264-02620
DECISION
Complainant filed a timely appeal with this Commission from the Agency's decision dated November 23, 2012, 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 Safety and Occupational Health Specialist, GS-0018-09, at the Agency's Marine Corps Base Combat Development Command facility in Quantico, Virginia.
On June 7, 2012,1 Complainant initiated contact with an EEO counselor alleging she was being discriminated against on the basis of her sex when, unlike her male colleagues, her promotion to GS-11 was delayed. Complainant asserted that she was the only female Safety Specialist employed in the unit. She alleged that she and her coworkers were told by management that once they fulfilled the requirement of graduating from the Joint CP-12 Safety and Occupational Health Training program and had one year of experience, they would get promoted. All of her male colleagues were promoted to GS-11 within a month of their anniversary date. Complainant stated that despite her graduation, satisfactory work performance and over one year of experience, she was the only employee whose promotion was delayed. Complainant also alleged that she was subjected to an ongoing discriminatory hostile work environment by her supervisor.
On September 1, 2012, Complainant filed a formal complaint alleging that the Agency subjected her to discrimination on the basis of sex (female) when:
1. On May 22 and on June 7, 2012, Complainant sent an email to her supervisor, with copies to the Deputy Director and Division Director, requesting her promotion to GS-11 or the reason, in writing, why she was not promoted. She received no response or promotion.
2. On May 9, 2012, her supervisor would not allow Complainant to assist with an on-site inspection tour of a Ground Safety class.
3. On an ongoing basis, her supervisor subjected her to a hostile work environment.2
On November 23, 2012, the Agency, focusing solely on Complainant's claim concerning the delayed promotion, issued a final decision dismissing the complaint, pursuant to 29 C.F.R. � 1614.107(a)(2), for untimely EEO Counselor contact. The Agency reasoned that Complainant was aware that her promotion was delayed in December 2011, but did not raise it with an EEO counselor until June 7, 2012, beyond the 45-day period for initiating timely EEO contact.
This appeal followed.
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R. � 1614.105(a)(1) requires that complaints of discrimination should be brought to the attention of the Equal Employment Opportunity 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 forty-five (45) days of the effective date of the action.
While the Agency focused solely on Complainant's claim that she was told as early as December 2011 that her promotion would be delayed, a fair reading of her complaint discloses that Complainant is challenging alleged ongoing discriminatory events, including specific ones that occurred in May 9, 2012, May 22, 2012, and June 7, 2012. She made EEO contact on June 7, 2012, which is within the forty-five (45) day limitation period for these alleged discriminatory incidents. With regard to the alleged December 15, 2011 event, Complainant clarified that this incident was part of her ongoing hostile environment claim and related to the alleged incidents that occurred on May 9, 2012 (not permitted to teach a class), and May 22 and June 7, 2012 (when management failed to respond to her inquiry about their reasons for denying her a career ladder promotion). In light of the ongoing nature of her claims, we find that the Agency erred in dismissing the complaint as untimely raised.
On appeal, Complainant has presented persuasive arguments and evidence demonstrating that her initiation of EEO Counselor contact was timely. The Agency failed to meet its burden of showing that it was untimely.
Upon review, the Commission finds that Complainant's complaint was improperly dismissed pursuant to 29 C.F.R. � 1614.107(a)(2), for untimely EEO Counselor contact.
CONCLUSION
Accordingly, we REVERSE the Agency's final decision dismissing Complainant's complaint and REMAND the complaint for further processing in accordance with the Order below.
ORDER (E0610)
The Agency is ordered to process the remanded claims3 in accordance with 29 C.F.R. � 1614.108 et seq. The Agency shall acknowledge to the Complainant that it has received the remanded claims 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 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 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
June 6, 2013
__________________
Date
1 Complainant had previously sought EEO counseling, but apparently decided not to file a formal complaint, on February 10, 2012. At the time, Complainant expressed her concerns about a poor working relationship with her supervisor. Complainant asserted that her supervisor treated her less favorably when he refused to talk with her and told her she needs to go with the flow and calm down. She requested a transfer, but was denied. Complainant contends that when male colleagues complained, the supervisor gave the males the relief requested immediately. Complainant also contended that the Division Head was overheard stating that he viewed Complainant as a troublemaker and was "making waves."
2 Complainant alleged she was more closely monitored and subjected to more stringent terms and conditions than her male colleagues. She said that her supervisor showed her no respect, and would not speak with her, communicating only by email. Complainant stated that she was not permitted to assist with a training class and the supervisor assigned a male co-worker to do the presentation, bypassing Complainant. She further claims that one other female employee resigned, citing discrimination as one of the reasons. Complainant submitted the statement of the former female employee.
3 With regard to the promotion claim, during its investigation, the Agency should explore whether or not Complainant is also alleging a violation of the Equal Pay Act in addition to the Title VII claim.
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0120130884
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120130884