0120120006
02-23-2012
Martina Carroll-Garrison, Complainant, v. John M. McHugh, Secretary, Department of the Army, Agency.
Martina Carroll-Garrison,
Complainant,
v.
John M. McHugh,
Secretary,
Department of the Army,
Agency.
Appeal No. 0120120006
Agency No. ARIMCOMHQ10JULY03655
DECISION
Complainant filed a timely appeal with this Commission from the Agency's
decision dated August 29, 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. and
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 worked as
the civilian Deputy to the Garrison Commander at the Agency’s Garrison
Benelux facility in Belgium.
The record indicates that on July 9, 2010, Complainant contacted the EEO
Counselor alleging discriminatory harassment by a subordinate employee
(Subordinate) which resulted in her resignation effective April 10,
2010. The record shows that Complainant filed a formal complaint on
September 16, 2010, alleging that she was subjected to discrimination
on the bases of national origin (Irish), sex (female), and age (48)
when she was subjected to the harassment sufficient to create a hostile
work environment.
The Agency issued a final decision on September 28, 2010, dismissing
the complaint. The Agency’s decision listed the following events as
raised by Complainant in support of her claim of harassment:
a. Complainant was the subject of an administrative grievance initiated
by the Subordinate;
b. in December 2008, Complainant was the subject of an EEO pre-complaint
by the Subordinate;
c. on September 24, 2009, Complainant learned that she was the subject
of an internal investigation by the Inspector General;
d. in January 2010, Complainant received a performance rating of
“3;” and
e. Complainant resigned due to the alleged harassment on April 10, 2010.
In its dismissal decision, the Agency found that Complainant’s initial
contact with the EEO Counselor occurred in July 2010, more than 45
days after the effective date of her resignation in April 2010. The
Agency also held that the events raised in allegations (a), (b), and
(c) in the complaint constituted a collateral attack on the grievance
process, the EEO complaint process, and the Agency’s Inspector General
investigatory process. The Agency found that such claims should be
dismissed pursuant to 29 C.F.R. § 1614.107(a)(1) for failure to state
a claim. The Agency provided Complainant rights to appeal the final
decision to the Merit Systems Protection Board (MSPB) based on the
constructive discharge claim.1
Complainant filed an appeal with the MSPB. The MSPB Administrative Judge
(MSBP AJ) issued a decision finding that the MSBP lacked jurisdiction over
the matter because Complainant failed to make a non-frivolous allegation
that her resignation was involuntary. MSPB Docket No. DC-0752-11-0109-I-1
(January 19, 2011).
Complainant filed a petition for review with this Commission. The
Commission denied Complainant’s petition finding Complainant’s
mixed complaint was no longer mixed. As such, the matter was referred
back to the Agency for processing of the complaint pursuant to 29
C.F.R. § 1614.107. Carroll-Garrison v. Dep’t of Army, EEOC Petition
No. 0320110024 (June 6, 2011).
Pursuant to the Commission’s decision in Petition No. 0320110024, the
Agency contacted Complainant on July 13, 2011, notifying Complainant
of the right to contact an EEO Counselor within 45 calendar days
of the decision. Complainant was also given the option to waive
counseling based on her prior contact in 2010. On July 18, 2011,
Complainant informed the Agency that she waived the right to counseling.
As such, the Agency issued Complainant a Notice of Right to File a
formal complaint on July 21, 2011, which she received on July 26, 2011.
On August 9, 2011, Complainant filed a formal complaint alleging that the
Agency subjected her to discrimination on the bases of national origin
(Irish), sex (female), and age (48) when she was subjected to hostile work
environment which resulted in her resignation effective April 10, 2010.
The Agency issued its second final decision on August 29, 2011,
dismissing the complaint again pursuant to 29 C.F.R. § 1614.107(a)(1)
and 29 C.F.R. § 1614.107(a)(2) for failure to state a claim and failure
to timely raise the matter with an EEO Counselor. The Agency noted in
the August 2011 dismissal that Complainant raised essentially the same
claims in both the September 2010 formal complaint as her August 2011
formal complaint. As such, the Agency determined that the complaint
still failed to state a claim and was raised in an untimely manner.
This appeal followed without comment. The Agency asked that the
Commission affirm its dismissal.
ANALYSIS AND FINDINGS
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.
As noted above, it is undisputed that Complainant first contacted
the Agency’s EEO Counselor regarding the harassment resulting in her
constructive discharge on July 9, 2010. Complainant’s contact was more
than 45 calendar days from her resignation, which was effective on April
10, 2010. Complainant provided no explanation or reason for the delay
which would justify an extension of the regulatory limitation period.
Accordingly, we find that the Agency’s dismissal of the complaint
pursuant to 29 C.F.R. § 1614.107(a)(2) for untimely EEO Counselor
contact was appropriate. As we are affirming the dismissal of the
entire complaint on timeliness grounds, we need not address the Agency’s
alternative grounds for dismissal based on failure to state a claim.
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.
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
February 23, 2012
__________________
Date
1 The Agency’s September 28, 2010 final decision provided Complainant
with the wrong appeal rights. The regulations provide that an Agency
may dismiss a mixed case complaint pursuant to 29 C.F.R. § 1614.107.
See 29 C.F.R. § 1614.302(c)(1). Where the Agency has not accepted a
complaint for processing – has disposed of the complaint on procedural
grounds pursuant to 29 C.F.R. § 1614.107 – the resulting final
Agency decision is appealable to the Commission. See Equal Employment
Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110),
Chap. 4, II(B)(4)(a)(3). (Nov. 9, 1999); see also, Abegglen v. Dep’t
of Energy, EEOC Appeal No. 01966055 (Oct. 9, 1998). Therefore, the
Agency should have issued its final decision in September 2010 with
appeal rights to the Commission, not MSPB.
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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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