01a51090
03-09-2005
Francine Smith, Complainant, v. John W. Snow, Secretary, Department of the Treasury, Agency.
Francine Smith v. Department of the Treasury
01A51090
03-09-05
.
Francine Smith,
Complainant,
v.
John W. Snow,
Secretary,
Department of the Treasury,
Agency.
Appeal No. 01A51090
Agency No. 04-2346
DECISION
Complainant filed a timely appeal with this Commission from the
agency's decision dated May 19, 2004, 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. and the Age Discrimination in Employment Act of 1967 (ADEA),
as amended, 29 U.S.C. � 621 et seq. Complainant filed a complaint
in which she claimed that the agency discriminated against her on the
bases of age (54) and disability (stress, depression, blood disorder)
by charging her absences from work as absences without leave (AWOL)
for a total of 192 hours.
The agency dismissed her complaint pursuant to 29 C.F.R. � 1614.107(a)(7).
That section provides that the agency shall dismiss a complaint where
it has provided complainant with a written request to provide relevant
information, but the complainant's response does not address the agency's
request, provided that the request included a notice of the proposed
dismissal. In its final decision, the agency stated that, by letter
dated March 22, 2004, it requested complainant to provide the specific
dates for which she was charged 192 hours of AWOL. That letter states,
in pertinent part:
[A]llegations of discrimination raised in the complaint may not be timely.
Therefore, this letter provides an opportunity for you to explain why
counseling may not have been sought in a timely manner if any of the
incidents occurred more than 45 days prior to the day counseling was
sought.
The record shows that you contacted an EEO Counselor on January 14,
2004....You allege that you were discriminated against . . . when you
were charged with 192 hours of absence without leave during an unspecified
time period. . .
Please respond in writing within fifteen days of receipt of this letter
. . . [I]f your response does not address our request, the complaint may
be dismissed for failure to comply with the applicable time limits. . .
In her response dated April 4, 2004, complainant indicated that she had
been taking a number of medications, including Zoloft, Paxil, Zyprexa, and
Viox. She also stated that she was being treated for a blood disorder.
It appears from her response that complainant did make an attempt to
explain why she waited until January 14, 2004, before she contacted an EEO
counselor. As for the specific dates for which complainant was charged
with AWOL, the agency already had this information in its possession.
A memorandum to complainant from her team manager dated May 5, 2003,
stated that complainant had been charged with 192 hours of AWOL between
April 2, 2003, and May 2, 2003. We therefore find that complainant's
response did address the agency's request.
Nevertheless, the manager's memorandum indicates that complainant was
notified of the AWOL charge on May 5, 2003, or shortly thereafter.
According to the counselor's report, she did not initiate contact with
an EEO Counselor until January 14, 2004, which is beyond the forty-five
(45) day limitation period. Aggrieved individuals are generally required
to contact an EEO counselor within 45 days of the alleged discriminatory
occurrence. 29 C.F.R. � 1614.105(a)(1). That time limit may be extended,
however, if the individual was unaware of the time limits, if she did not
know or could not reasonably have known that discrimination had occurred,
if she was prevented from timely contacting a counselor by circumstances
beyond her control, or for any other reasons considered sufficient by
the Commission. 29 C.F.R. � 1614.105(a)(2). In addition, the 45-day
time limit is subject to waiver, estoppel, and equitable tolling.
29 C.F.R. � 1614.604(c). The evidence of record is not sufficient
to establish that complainant was so incapacitated at the time she was
notified of the AWOL charge that she could not contact an EEO counselor
in a timely manner. See McCoy v. Department of the Army, EEOC Request
No. 05970851 (March 4, 1999). Accordingly, the agency's final decision
dismissing complainant's complaint is affirmed.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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 (S0900)
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 (Z1199)
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
____03-09-05______________
Date