0120111054
04-04-2011
Aliya F. Blue, Complainant, v. Gary Locke, Secretary, Department of Commerce, (Bureau of the Census), Agency.
Aliya F. Blue,
Complainant,
v.
Gary Locke,
Secretary,
Department of Commerce,
(Bureau of the Census),
Agency.
Appeal No. 0120111054
Agency No. 10-63-02965D
DECISION
Upon review, the Commission finds that the Agency's decision dated
November 8, 2010, dismissing Complainant's complaint due to untimely
EEO Counselor contact is proper pursuant to 29 C.F.R. � 1614.107(a)(2).
The Agency's decision dismissing the complaint is AFFIRMED.
BACKGROUND
In her complaint, dated August 25, 2010, Complainant, a former
Enumerator, with the Agency's Huntington Beach Local Census Office,
Los Angeles Regional Census Center, alleged discrimination based on her
race (African-American) and disability (chronic diabetes) when she was
terminated on May 2, 2010. The Agency stated that Complainant contacted
an EEO Counselor with regard to her complaint on July 20, 2010, which
was beyond the 45-day time limit set by the regulations.
On appeal, Complainant contends that she tried to contact an EEO
Counselor as early as June 10, 2010. Complainant's December 28, 2010,
Appeal Brief.
The Agency indicates that Complainant has not served a copy of her Notice
of Appeal or her appeal brief on the Agency. Agency's January 11, 2010,
Letter.
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R. � 1614.105(a)(1) requires that complaints
of discrimination be brought to the attention of the EEO Counselor
within 45 days of the alleged discriminatory event, or the effective
date of an alleged discriminatory personnel action. The Agency stated
that the alleged incident occurred on May 2, 2010, the effective date
of Complainant's termination at issue. Complainant does not dispute
this on appeal. Complainant also indicated that she was aware of the
alleged discrimination on May 2, 2010. Complainant's Formal Complaint,
Attachment 2-A. Thus, we find that Complainant's EEO Counselor contact
regarding the termination on July 20, 2010, was beyond the 45-day time
limit set by the regulations.
We note that despite her contentions, Complainant, other than her mere
assertions, does not provide any evidence to support her purported
EEO Counselor contact on June 10, 2010, as she claims, or within the
requisite time limit. We also note that Complainant does not claim that
she was not aware of the 45-day time limit to contact an EEO Counselor
at the time of the alleged incident. Based on the foregoing, we find
that Complainant fails to present adequate justification to warrant an
extension of the applicable time limit for contacting an EEO Counselor.
CONCLUSION
Accordingly, the Agency's final decision 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
4/4/11
__________________
Date
2
0120111054
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
3
0120111054