0120083544
10-23-2008
Deborah M. LaManna, Complainant, v. Dr. James B. Peake, Secretary, Department of Veterans Affairs, Agency.
Deborah M. LaManna,
Complainant,
v.
Dr. James B. Peake,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120083544
Agency No. 200P04592008102362
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dated June 24, 2008, 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.
Upon review, the Commission finds that complainant's complaint was
properly dismissed pursuant to 29 C.F.R. � 1614.107(a)(2), for untimely
EEO Counselor contact. In her complaint, complainant alleged that she was
subjected to discrimination on the basis of reprisal for prior protected
EEO activity under Title VII of the Civil Rights Act of 1964 when, on
December 12, 2007, her telephone privileges were revoked. Further, on
May 28, 2008, complainant raised two claims concerning statements made
by her supervisor from November 2007 through February 2008, regarding
her probationary status, and when she learned her supervisor kept a
calendar on which it was noted that complainant was late.
The record discloses that the alleged discriminatory event occurred
on December 4, 2007, but complainant did not initiate contact with an
EEO Counselor until March 27, 2008, which is beyond the forty-five (45)
day limitation period. Further, the claims raised by complainant on May
28, 2008 are also untimely raised. On appeal, complainant has presented
no persuasive arguments or evidence warranting an extension of the time
limit for initiating EEO Counselor contact. While she asserts she did not
know about the 45-day limitation period, evidence presented by the agency
reveals she received training in April 2007 on the EEO complaints process,
including the applicable time limitations. Complainant also presented
evidence that she suffered from an anxiety disorder and asserts she
was delayed in making EEO contact because she was not thinking clearly
due to her husband's sudden death on February 12, 2008. While this was
undoubtedly a difficult period for complainant, we note that her husband
died after the expiration of the limitation period. We have consistently
held, in cases involving physical or mental health difficulties, that
an extension is warranted only where an individual is so incapacitated
by his condition that he is unable to meet the regulatory time limits.
See Davis v. United States Postal Service, EEOC Request No. 05980475
(August 6, 1998); Crear v. United States Postal Service, EEOC Request
No. 05920700 (October 29, 1992). The evidence of record does not
establish that complainant has met this standard.
Accordingly, the agency's final decision dismissing complainant's
complaint is affirmed.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0408)
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), 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 19848,
Washington, D.C. 20036. 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 (S0408)
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 (Z0408)
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 that the Court appoint
an attorney to represent you and that the Court 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 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
October 23, 2008
__________________
Date
2
0120083544
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
3
0120083544