U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Dotty C.,1 Complainant, v. Bill Johnson, President and Chief Executive Officer, Tennessee Valley Authority, Agency. Appeal No. 0120150689 Hearing No. 420-2014-00224X Agency No. TVA 2014-0004 DECISION Complainant filed a timely appeal with this Commission from the Agency's decision dated November 12, 2014, 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 a Material Handler II at the Agency's Browns Ferry Nuclear Plant facility in Athens, Alabama. On October 15, 2013, Complainant contacted the EEO Counselor alleging discrimination. When the matter could not be resolved informally, on December 16, 2013, Complainant filed a formal complaint alleging that the Agency subjected her to discrimination on the bases of sex (female) and disability when, effective April 29, 2013, Complainant was terminated from her position with the Agency. The Agency accepted the complaint for investigation. Following the investigation, Complainant requested a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). The parties engaged in discovery. On September 12, 2014, the Agency filed a motion to dismiss. The Agency noted that Complainant was terminated effective April 29, 2013, but did not contact the EEO Counselor until October 2013, well beyond the 45 day time limit. Complainant responded to the Agency's motion on September 18, 2014. In her response, Complainant merely stated that she would like the opportunity to bring the case before the AJ. On September 24, 2014, the AJ issued a decision dismissing the matter pursuant to 29 C.F.R. § 1614.107(a)(2). The AJ held that Complainant was aware of the alleged discrimination when she was terminated effective April 29, 2013. Further, the AJ noted that Complainant had filed a grievance regarding the termination on April 4, 2013. However, Complainant did not raise her claim of discrimination for several months later on October 15, 2013. As such, the AJ concluded that the matter should be dismissed for failure to contact an EEO Counselor in a timely manner. The Agency issued its final decision implementing the AJ's dismissal on November 10, 2014. This appeal followed. ANALYSIS AND FINDINGS 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. The record indicated that Complainant had engaged in prior EEO activity. As such, she knew or should have known of the 45 day time limit. She was issued the termination action which was effective April 29, 2013. Complainant did not contact the EEO Counselor until October 2013, many months after the effective date of the termination. In April 2013, Complainant filed a grievance in which she challenged the termination action. The Commission has consistently held that use of agency procedures, union grievances, and other remedial processes does not toll the time limit for contacting an EEO Counselor. See Ellis v. U.S. Postal Serv., EEOC Appeal No. 01992093 (Nov. 29, 2000). Upon review of the record, Complainant failed to contact the EEO Counselor within the 45 day time limit and provided no reason for her delay. As such, we conclude that the AJ's properly dismissed the complaint pursuant to 29 C.F.R. §1614.107(a)(2). 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 implementing the AJ's order to dismiss. 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 9, 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. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 2 0120150689 2 0120150689