0120130570
05-03-2013
Stephanie M. Perks, Complainant, v. Frank Calvelli, Principal Deputy Director, National Reconnaissance Office, Agency.
Stephanie M. Perks,
Complainant,
v.
Frank Calvelli,
Principal Deputy Director,
National Reconnaissance Office,
Agency.
Appeal No. 0120130570
Agency No. OCR-12-02-NR0-CI
DECISION
Complainant filed an appeal with this Commission from the Agency's final decision dated September 25, 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. We deem the appeal timely1 and accept it pursuant to 29 C.F.R. � 1614.405(a). For the reasons which follow, the Agency's final decision is AFFIRMED.
BACKGROUND
Complainant worked as a Contracting Officer at the Agency from December 6, 2009 through June 15, 2012, when she resigned from the Agency. On August 25, 2012, Complainant filed a formal complaint alleging that the Agency subjected her to discrimination with respect to the following claims.
Claim 1: Complainant alleged that the Agency had subjected her to discrimination on the basis of sex (female) when:
1) on March 6, 2012, Complainant learned the Inspector General (IG) was investigating her because the Advanced Systems & Technology (AS&T) Contracts manager referred her to the IG for allegations of time and attendance fraud;
2) on March 13, 2012, Complainant learned the Director of the Office of Contracts (OC) withheld Complainant's non-competitive promotion to GS-11;
3) on March 15, 2012, the Director of OC issued Complainant a counseling memorandum;
4) on March 23, 2012, the Director of OC issued Complainant a management referral to the Employee Assistance Program (EAP);
5) on March 28, 2012, Complainant learned that the Director of OC extended Complainant's trial [two-year probationary] period; and
6) on June 4, 2012, the Director of OC directed Complainant to complete a closeout Performance Annual Review (PAR).
Claim 2: Complainant alleged the Agency discriminated against her on the basis of her religion (pre-conversion to Catholicism) when:
1) on April 17, 2012, the AS&T Contracts manager directed Complainant via an EAP counselor to remove a voodoo doll from Complainant's desk; and
2) the AS&T Contracts manager made an anti-Catholic remark (date undisclosed), stating she [the manager] "doesn't push religion on people like a Catholic would."
As background information in her formal complaint, Complainant alleged that the (female) AS&T Contracts manager greeted males in the mornings and attended meetings with males but did not greet females nor regularly attend meetings with females, other than meetings with more-senior females. Complainant further alleged three other females were reported to the IG for time and attendance fraud while working under the AS&T Contracts manager's supervision.
The Agency dismissed Claim 1, issues 1 through 5 of Complainant's complaint for failure to initiate EEO counseling within 45 days of the alleged discriminatory event, citing 29 C.F.R. � 1614.107(a)(2). It found that Complainant had initiated pre-complaint counseling on May 14, 2012. It then determined that as May 14, 2012, was beyond 45 days after the alleged discriminatory events, Complainant had exceeded the 45-day time frame to contact an EEO Counselor, and that she had not presented adequate justification for her untimely filing. The Agency dismissed Claim 1, issue 6, and Claim 2, issues 1 and 2 for failure to state a claim, citing 29 C.F.R. � 1614.107(a)(1). The Agency found that Complainant had not alleged that she suffered a harm to a term, condition or privilege of employment, and that a remark or comment did not rise to the level of a harm for which there was a remedy. Complainant thereafter filed the instant appeal.
CONTENTIONS ON APPEAL
Complainant submitted a brief statement in support of her appeal. She stated that the Agency had misrepresented many facts. She disputed that she had reasonable suspicion of discrimination with respect to claim 1, issue 1, until after March 13, 2012, and claimed that she was timely. She did not describe any other inaccuracies, and did not file any supplemental statements. The Agency submitted a statement in opposition to the appeal, arguing that the appeal was untimely, and urging the Commission to uphold its dismissal of the complaint.
ANALYSIS AND FINDINGS
The regulation set forth at 29 C.F.R. � 1614.107(a)(2) states, in pertinent part, that an agency shall dismiss a complaint which fails to comply with the applicable time limits contained in 29 C.F.R. � 1614.105. EEOC Regulation 29 C.F.R. � 1614.105(a)(1) requires that complaints of discrimination should be brought to the attention of the EEO 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. However, these time limits are subject to waiver, estoppel and equitable tolling. 29 C.F.R. � 1614.604(c). The record reflects that Complainant initiated the EEO Counseling process on May 14, 2012. In her formal complaint and in the documents developed in the counseling stage, Complainant indicated that the dates of the discriminatory events for Claim 1, issues 1 through 5 were from March 6, 2012, through March 28, 2012. We find that Complainant does not provide any justification as to why she waited beyond the 45-day period to contact an EEO Counselor for issues 1 through 4, and thus has not shown why the time limits in her case should be subject to waiver, estoppel or equitable tolling.
With respect to claim 1, issue 5, we find that the Agency's determination of untimeliness is incorrect. The 45th day after March 28, 2012 is May 12, 2012, which was a Saturday. According to 29 C.F.R. � 1614.604(d), if the last day of the time period falls on a Saturday, Sunday, or a federal holiday, the period shall be extended to include the next business day. The next business day was Monday, May 14, 2012, therefore, with respect to claim 1, issue 5, Complainant's EEO Counselor contact was timely.
However, we further find that claim 1, issue 5, should more properly be dismissed as moot. The regulation set forth at 29 C.F.R. � 1614.107(a)(5) provides for the dismissal of a complaint when the issues raised therein are moot. To determine whether the issues raised in Complainant's complaint are moot, the fact-finder must ascertain whether: (1) it can be said with assurance that there is no reasonable expectation that the alleged violation will recur; and (2) interim relief or events have completely and irrevocably eradicated the effects of the alleged discrimination. See County of Los Angeles v. Davis, 440 U.S. 625, 631 (1979); Kuo v. Dep't of the Navy, EEOC Request No. 05970343 (July 10, 1998). When such circumstances exist, no relief is available and no need for a determination of the rights of the parties is presented. In claim 1, issue 5, Complainant alleged that her two-year probationary period had been extended for an additional year, ending in December 2012. Complainant resigned her position at the Agency in June 2012, thereby eradicating the affects of the alleged discrimination. There is no reasonable expectation that the alleged violation with recur as Complainant is no longer an employee of the Agency. We note that Complainant did not request compensatory damages in her formal complaint; therefore, the effects of the alleged discrimination have been completely and irrevocably eradicated.
The regulation set forth at 29 C.F.R. � 1614.107(a)(1) provides, in relevant part, that an agency shall dismiss a complaint that fails to state a claim. An agency shall accept a complaint from any aggrieved employee or applicant for employment who believes that he or she has been discriminated against by that agency because of race, color, religion, sex, national origin, age or disabling condition. 29 C.F.R. �� 1614.103, .106(a). The Commission's federal sector case precedent has long defined an "aggrieved employee" as one who suffers a present harm or loss with respect to a term, condition, or privilege of employment for which there is a remedy. Diaz v. Dep't of the Air Force, EEOC Request No. 05931049 (Apr. 21, 1994).
We find that the Agency dismissal of these claims should be affirmed. Complainant does not show that she suffered a harm to a term, condition, or privilege of employment, nor does she allege facts which would be sufficient to show that she has stated a claim of a hostile work environment.
CONCLUSION
Therefore, we AFFIRM the Agency's final decision dismissing Complainant's 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
May 3, 2013
Date
1 Complainant represented that she received the FAD on October 4, 2012, and that she mailed the appeal on October 29, 2012. It was not received by the Commission until November 9, 2012, and the appeal did not bear a legible postmark. Although the Agency argued that Complainant had received the dismissal decision on October 2, 2012, it did not provide proof which showed that the decision was received at Complainant's address of record on this date, supplying only Federal Express tracking information which shows it was received in Complainant's city and state. It is the Agency's burden to show timeliness, and we previously have held that generalized tracking information is insufficient to show receipt. See Esco v. U.S. Postal Service, EEOC Appeal No. 0120081879 (July 16, 2008). Therefore, we deem Complainant's appeal to be timely.
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0120130570
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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