0120091900
06-12-2009
Eileen Spencer, Complainant, v. Tom J. Vilsack, Secretary, Department of Agriculture, Agency.
Eileen Spencer,
Complainant,
v.
Tom J. Vilsack,
Secretary,
Department of Agriculture,
Agency.
Appeal No. 0120091900
Agency No. FRS200800539
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dated February 13, 2009, dismissing her complaint of unlawful
employment discrimination in violation of the Age Discrimination in
Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
Upon review, the Commission finds that complainant's complaint was
properly dismissed pursuant to 29 C.F.R. � 1614.107(a)(2), due to the
untimely filing of the formal complaint.
In her complaint, complainant alleged that she was subjected to
discrimination on the basis of age (71) when since May 2007 her
Archeologist responsibilities have been significantly reduces; and on
March 28, 2008 her supervisor issued her a letter outlining her work
assignments for the year, and her Fiscal Year 2008 Performance Elements
and Standards, without giving her an opportunity to provide feedback.
The record discloses that complainant received the notice of right to file
a formal complaint on July 21, 2008. Although the notice indicated that
complainant had to file a formal complaint within fifteen (15) calendar
days of its receipt, complainant did not file her formal complaint
until August 15, 2008, which is beyond the limitation period. On appeal,
complainant has not offered adequate justification to warrant an extension
of the time limit for filing the complaint. Complainant asserts that
she was attempting to resolve the matter with her supervisor, and that
if she sent in the paperwork, it would interfere with the resolution
efforts. Complainant also asserts that the counselor refused to hear
her complaint and that he did not take her complaint seriously. The
Commission notes that a counselor's responsibility is to take the
information about the complaint. Only after a formal complaint is filed,
and accepted for investigation, is an investigation of the claims done by
an EEO investigator. A review of the record indicates that the notice
of final interview explicitly explained to complainant what she needed
to do and the time frames for filing her formal complaint.
Accordingly, the agency's final decision dismissing complainant's
complaint is affirmed.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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 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 (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 (Z1008)
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
June 12, 2009
__________________
Date
2
0120091900
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
3
0120091900