0120120061
09-26-2013
Ladrone M. Parks-Harris, Complainant, v. Eric H. Holder, Jr., Attorney General, Department of Justice (Federal Bureau of Prisons), Agency.
Ladrone M. Parks-Harris,
Complainant,
v.
Eric H. Holder, Jr.,
Attorney General,
Department of Justice
(Federal Bureau of Prisons),
Agency.
Appeal No. 0120120061
Hearing No. 490-2011-00108X
Agency No. P-2010-0538
DECISION
Complainant filed a timely appeal with this Commission from the Agency's decision dated August 30, 2011, 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. Upon review, the Commission finds that Complainant's complaint was properly dismissed pursuant to 29 C.F.R. � 1614.107(a)(2), for untimely EEO Counselor contact.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Maintenance Worker Supervisor, GS-8, at the Federal Correctional Institution (FCI) Memphis, Memphis, Tennessee. On August 31, 2010, Complainant filed a formal complaint alleging that the Agency subjected her to discrimination on the basis of sex (female) when from November 2009 through January 2010; she was subjected to sexual harassment in the form of comments and advances of a sexual nature. Following an investigation, Complainant requested a hearing before an EEOC Administrative Judge (AJ). The AJ found that Complainant alleged two incidents, one occurring on November 16, 2009 and the other on January 10, 2010. The AJ noted that Complainant first contacted an EEO Counselor about these matters on May 18, 2010.
On July 19, 2011, the AJ issued an Order Entering Judgment of Dismissal for Untimely Filing. The AJ concluded that Complainant's claims were untimely raised since the alleged acts cited by Complainant occurred in November 2009, and January 2010 but she did not contact an EEO Counselor until some four months following the last incident, which the AJ found was well after the 45-day deadline for EEO counselor contact had expired. The AJ also noted that Complainant failed to respond to an Agency discovery request and did not respond to the AJ's May 5, 2011, Order to Show Cause why the Agency's Motion to dismiss for untimeliness should not be granted. Based on the record, the AJ dismissed Complainant's complaint for untimely EEO Counselor contact. The Agency fully implemented the AJ's decision.
CONTENTIONS ON APPEAL
Complainant did not file a brief on appeal. The Agency however, contends that Complainant's EEO Counselor contact was untimely because she waited 109 days following the last incident to contact an EEO Counselor. The Agency argues that Complainant identified two incidents involved in her claim and neither one of them occurred within the 45-day limitation period. The Agency also argues that the 45-day limitation should not be tolled as Complainant attended the Annual Refresher Training (ART) in February 2010, and that EEO information and deadlines were discussed. The Agency requests that the AJ's dismissal of Complainant's complaint be affirmed.
ANALYSIS AND FINDINGS
Pursuant to 29 C.F.R. �1614.105(a)(1), an aggrieved person must contact an EEO Counselor within 45 days of the incident he or she believes is discriminatory. The EEOC's regulations contained at �� 1614.105(a)(1) & (2) and � 1614.107(b) provide for the dismissal of any complaint for which a Federal employee fails to make EEO Counselor contact within 45 days of the alleged discrimination.
In the instant case, the alleged discriminatory event occurred, at the latest, on January 29, 2010, but Complainant did not initiate contact with an EEO Counselor until May 18, 2010, which is beyond the forty-five (45) day limitation period. On appeal, Complainant presented no argument or evidence explaining her untimeliness; therefore, we do not find that she warrants an extension of the time limit for initiating EEO Counselor contact.
CONCLUSION
Accordingly, the Agency's final decision dismissing Complainant's complaint 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
_9/26/13_________________
Date
2
0120120061
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120120061