0120150858
02-15-2017
Bettyann B.,1 Complainant, v. Tom J. Vilsack, Secretary, Department of Agriculture (Rural Development), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Bettyann B.,1
Complainant,
v.
Tom J. Vilsack,
Secretary,
Department of Agriculture
(Rural Development),
Agency.
Appeal No. 0120150858
Agency No. RA-2014-00703
DECISION
Complainant filed a timely appeal with this Commission from the Agency's decision dated November 25, 2014, dismissing her complaint of unlawful employment discrimination in violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq.
BACKGROUND
At the time of events giving rise to this complaint, Complainant was a former Area Specialist at the Agency's facility in Phoenix, Arizona.
On July 29, 2014, Complainant initiated EEO Counseling. On September 23, 2014, Complainant filed a formal complaint alleging that the Agency subjected her to discrimination on the basis of reprisal for prior protected EEO activity under Section 501 of the Rehabilitation Act of 1973 when:
1. On September 9, 2009, her request for reasonable accommodation was denied;
2. From April 29, 2010 to June 19, 2010, management failed to respond to her request for reasonable accommodation; and
3. On June 19, 2010, Complainant was constructively discharged from her GS-1165-12, Area Specialist position, when she retired due to the agency's failure to respond to her reasonable accommodation request.
The Agency dismissed claim (1) pursuant to 29 C.F.R. �1614.107(a)(2) for failure to contact the EEO Counselor in a timely manner. The Agency noted that Complainant alleged that she was subjected to discrimination on September 9, 2009, but did not contacted the EEO Counselor until July 29, 2014, well beyond the 45 day time limit. The Agency noted that Complainant had engaged in prior EEO activity and was aware of the time limit and she failed to provide any basis for an extension of the time period. Therefore, the Agency dismissed claim (1) pursuant to 29 C.F.R. �1614.107(a)(2).
The Agency then turned to claims (2) and (3). The Agency indicated that Complainant discrimination when she was denied a reasonable accommodation and she was constructively discharged. The Agency noted that Complainant had alleged these claims with the Agency in a prior EEO complaint, namely Agency No. RD-2010-00786. As such, the Agency dismissed claims (2) and (3) pursuant to 29 C.F.R. � 1614.107(a)(1) for stating the same claim in a previously decided matter.
This appeal followed.
ANALYSIS AND FINDINGS
Claim (1)
EEOC Regulation 29 C.F.R. �1614.107(a)(2) states that the Agency shall dismiss a complaint or a portion of a complaint that fails to comply with the applicable time limits contained in �1614.105, �1614.106 and �1614.204(c), unless the Agency extends the time limits in accordance with �1614.604(c).
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 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.
Upon review of the record, Complainant alleged discrimination when she was denied reasonable accommodation in September 9, 2009. The record indicated that Complainant retired from her position on June 9, 2010. Complainant did not contact the EEO Counselor regarding claim (1) until July 2014, well beyond the 45 day time limit. Complainant has provided no argument or evidence that the time frame should be extended. As such, we find that the Agency's dismissal of claim (1) pursuant to 29 C.F.R. �1614.107(a)(2).
Claims (2) and (3)
The regulation set forth at 29 C.F.R. � 1614.107(a)(1) provides that the Agency shall dismiss a complaint that states the same claim that is pending before or has been decided by the Agency or Commission. Upon review of the record, the Agency provided a copy of its final decision regarding Agency No. RD-2014-00703. This prior complaint alleged discrimination on the basis of reprisal and disability when the Agency failed to respond to Complainant's request for a reasonable accommodation and, on June 19, 2010, Complainant was constructively discharged. Complainant, in support of her appeal, provided a copy of the Agency's Report of Investigation from Agency No. RD-2014-00703. We find that Complainant's submission supports the Agency's argument that she has raised claims (2) and (3) in her prior EEO complaint. Therefore, we find that the Agency's dismissal of claims (2) and (3) pursuant to 29 C.F.R. � 1614.107(a)(1) was appropriate.
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 as a whole.
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
February 15, 2017
__________________
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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