0120161692
07-08-2016
Harmony E.,1 Complainant, v. Eric K. Fanning, Secretary, Department of the Army, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Harmony E.,1
Complainant,
v.
Eric K. Fanning,
Secretary,
Department of the Army,
Agency.
Appeal No. 0120161692
Agency No. ARCEHECSA15DEC04728
DECISION
Complainant filed a timely appeal with this Commission from the Agency's decision dated March 8, 2016, dismissing her complaint of unlawful employment discrimination in violation of the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
BACKGROUND
At the time of events giving rise to this complaint, Complainant was a former employee from the Agency's U.S. Army Corps of Engineers (USACE) in Washington, DC. Complainant left her position in January 2014, accepting a lateral position in the Pentagon. She filed her complaint concerning events that occurred while she was employed at USACE.
On January 29, 2016, Complainant filed a formal complaint alleging that the Agency subjected her to discrimination on the basis of age when: (a) in December 2015, while attending a workshop and talking to people from other federal agencies, she learned about financial support they received for participation in American University's MPA [Master of Public Administration] program, but her USACE senior leader, the Director of Human Resources refused to discuss funding options for such programs with her; (b) in December 2013, the team lead told her that "the next person I hire is going to be young because they can do more things"; (c) in September 2013, her appointment with the Director of Human Resources regarding financial support for an MPA program was cancelled without reason; (d) in September 2013, the Director of Human Resources and another manager approached Complainant and asked her if she was going to retire after her recovery from a blood clot on her heart and a stroke; (e) in 2011, when verifying an appointment to see the Director of Human Resources, she was told by the secretary that the director had instructed her to remove the appointment; (f) during her farewell luncheon from Human Resources, she overheard the Director of Human Resources state, "she needs to go"; (g) she did not receive her written yearly appraisal upon her departure; and (h) other employees who are retirement eligible are not considered for professional development.
The Agency dismissed claims a and h for failure to state a claim, and claims b, c, d, e, f and g for untimely EEO Counselor contact. The instant 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.
The record discloses that Complainant was employed with the Agency until January 2014, but did not initiate contact with an EEO Counselor until December 11, 2015, which is well beyond the forty-five (45) day limitation period. All of the claims involve actions or statements that happened while Complainant was employed by the Agency.
On appeal, Complainant has presented no persuasive arguments or evidence warranting an extension of the time limit for initiating EEO Counselor contact.
Because we find the entire complaint was untimely raised with the EEO counselor, we need not address whether claims a and h state a claim.
Accordingly, the Agency's final decision dismissing Complainant's complaint is AFFIRMED.
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 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 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
July 8, 2016
__________________
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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