01A20614_r
04-07-2003
Helen Rhinesmith, et al. v. Department of the Treasury
01A20614
April 7, 2003
.
Helen Rhinesmith, et al.,
Complainant,
v.
John W. Snow,
Secretary,
Department of the Treasury,
Agency.
Appeal No. 01A20614
Agency No. 00-0021C
Hearing No. 110-A0-8442X
DECISION
Complainant's class claims of discrimination were forwarded to an EEOC
Administrative Judge (AJ) for a certification determination. The AJ
dismissed the entire complaint on February 20, 2001, and the agency
adopted the AJ's findings on March 23, 2001. Complainant timely
appealed on November 1, 2001.<1> The AJ defined the complaint as
alleging discrimination on the bases of disability and reprisal for
prior EEO activity when:
Complainant was selected for a GS-962-7/8 position, but the agency would
not allow complainant to train for or assume the position;
Complainant was subjected to harassment and intimidation by a letter
from a general legal services attorney stating that complainant could
not work a shift or attend a training session if she did not sign an
acceptance letter;
The agency denied complainant's request for a reasonable accommodation
to change her duty hours from 4:00 p.m. - 2:30 a.m., to 7:00 a.m. - 3:30
p.m., in order to allow complainant's husband to drive her to work; and
The class was retaliated against and harassed by agency employees after
designating Person A (an attorney) as their representative.
The AJ found that complainant's disability claims involved harm personal
to complainant, and therefore did not allege class-wide discrimination.
Regarding the alleged class-wide discrimination on the basis of reprisal,
the AJ found that this class claim failed to state a claim. The AJ
explained that complainant's alleged protected activity was the hiring
of her attorney, and such action did not constitute protected activity.
The AJ also dismissed the entire complaint for untimely counselor contact,
finding that the alleged discrimination occurred on August 13, 2000,
but complainant did not contact an EEO Counselor until October 15, 2000.
The agency adopted the AJ's findings without substantive comment, and
complainant appealed.
On appeal, complainant, through her attorney, argues that her disability
claims were intended to be an individual complaint. The only class
claim involved the treatment received by persons who name complainant's
attorney as their representative. According to complainant's attorney,
the �precipitating event� for complainant's claim was an August 26, 2001
letter sent from the agency's labor attorneys to complainant's attorney.
Complainant also argues, however, that she initially contacted an EEO
counselor on October 11, 1999, regarding her class claim.<2> When the
agency failed to provide her with EEO Counseling, she filed a formal
complaint on November 17, 1999. The agency neglected to appoint an
EEO Counselor until March 2000. The EEO Counselor issued complainant
her notice of right to file a formal complaint on May 5, 2000, and
complainant filed another formal complaint on May 15, 2000.
A review of the record reveals that the AJ, agency, and complainant's
attorney all misstated several relevant dates in the present complaint.
Complainant wrote the agency on August 16, 1999, requesting changed duty
hours for the position offered to her on August 11, 1999. The agency,
via an August 25, 1999 letter from an attorney in its �General Legal
Services,� denied complainant's accommodation request. The letter
informed complainant that she could not attend training until it received
complainant's �valid acceptance� of the job offer.
The EEO Counselor's Report states that complainant first requested
counseling on October 15, 1999, but the agency failed to assign an EEO
Counselor until March 2000. Complainant submitted formal complaint
forms dated November 17, 1999, May 5, 2000, and May 15, 2000. All of
these complaints concern the agency's denial of complainant's reasonable
accommodation request, the agency's decision to bar complainant from
training classes until she formally accepted the job, and the harassment
all complainants receive who name complainant's attorney as their
representative. With respect to complainant's prior protected activity,
complainant notes that she received the agency's �outrageous� August 25,
1999 letter only a few days after designating her attorney in a separate,
prior EEO complaint pending before an AJ.
Complainant must raise claims of discrimination within forty-five (45)
days of their occurrence. See 29 C.F.R. � 1614.105(a)(1). The agency
may dismiss claims that fail to comply with this time limit. See 29
C.F.R. � 1614.107(a)(2). The time limitation is not triggered until a
complainant reasonably suspects discrimination, but before all the facts
that support a charge of discrimination have become apparent.
Complainant should have suspected discrimination in her individual,
disability-based claims, and her class-wide discrimination claim when she
received the agency's August 25, 1999 letter on, at the latest, August
27, 1999. There is no August 26, 2001 letter from the agency's labor
attorneys to complainant's attorney in the present record. Further,
this date is well after complainant sought counseling and filed her
formal complaints, and therefore, could not be the �precipitating event�
for complainant's claims. The Commission finds that complainant first
contacted an EEO Counselor on October 15, 1999. Complainant has failed
to explain her delay in contacting a counselor until after the 45-day
time limit expired. Accordingly, the agency's untimely counselor contact
dismissal of the class and individual complaints is AFFIRMED.<3>
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
April 7, 2003
__________________
Date
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days after it was mailed. I certify
that this decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
__________________
Date
______________________________
1The agency failed to provide proof of the attorney's receipt.
Complainant's attorney contends he received the final decision on October
2, 2001.
2In his November 17, 1999 formal complaint, complainant only identified
the contact as having occurred in �early October.�
3Since the Commission affirmed the untimeliness dismissal, it will
not address the other grounds raised in the AJ's decision, nor whether
complainant's class claim meets certification requirements.