Kathleen S. Johns, Complainant,v.Dr. Donald C. Winter, Secretary, Department of the Navy, Agency.

Equal Employment Opportunity CommissionMar 6, 2009
0120090114 (E.E.O.C. Mar. 6, 2009)

0120090114

03-06-2009

Kathleen S. Johns, Complainant, v. Dr. Donald C. Winter, Secretary, Department of the Navy, Agency.


Kathleen S. Johns,

Complainant,

v.

Dr. Donald C. Winter,

Secretary,

Department of the Navy,

Agency.

Appeal No. 0120090114

Agency No. DON-08-70272-01535

DECISION

Complainant filed a timely appeal with this Commission from a final

agency decision (FAD) dated September 8, 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. and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation

Act), as amended, 29 U.S.C. � 791 et seq. In her complaint, complainant

alleged that she was subjected to discrimination on the bases of sex

(female) and disability (arm) when:

1. in 2005, she sustained an on-the-job injury resulting in a broken

bone in her right arm, and there was no help or accommodation in any

way in making the job easier,

2. on April 14, 2008, her CAC card was taken out of her computer by her

supervisor, she was made to get a temporary pass, and then the supervisor

returned the card 20 minutes later,

3. on April 23, 2008, her supervisor called her into his office to sign

a letter pertaining to her light duty status, but when she arrived he

became angry and told her "not now," and she did not sign the letter

until approximately two weeks later,

4. on April 29, 2008, her supervisor told a customer complainant more

than likely deleted data from a database, and

5. on May 6, 2008, her supervisor refused to explain a work procedure

to complainant.

The FAD dismissed claim 1 on the grounds that the incident occurred in

2005, but complainant did not initiate contact with an EEO counselor

until April 29, 2008, beyond the 45 calendar day time limit to do so.

29 C.F.R. � 1614.105(a)(1) & .107(a)(2). It dismissed claims 4 and 5 for

failure to state a claim. It reasoned complainant was not aggrieved.

29 C.F.R. � 1614.107(a)(1). It dismissed claims 2 and 3 by omission.

The FAD dismissed the entire complaint for failure to timely file the

complaint. 29 C.F.R. � 1614.105(d) & .107(a)(2). When a complainant

is represented by an attorney of record, time limits are calculated by

the receipt of the required documents by the attorney. Cf. 29 C.F.R. �

1614.402(b).

Complainant has been represented by an attorney throughout the

process, including counseling. The agency sent the notice of right

to file a discrimination complaint to complainant and her attorney.

The notice, which was directed to complainant, advised that she must

file her complaint within 15 calendar days of receipt of the notice,

and provided an address and facsimile telephone number for doing so.

The notice contained a signed certificate of service [actual mailing]

stating that on July 15, 2008 it was sent to complainant by regular mail

and to her attorney by FedEx, and listing the addresses it was sent.

The record contains a FedEx tracking receipt indicating it was delivered

to the attorney's address on [Wednesday] July 16, 2008.

In dismissing the complaint for failure to timely file the complaint,

the FAD explained that the notice of right to file the complaint was

received by complainant's attorney of record on July 16, 2008, but

complainant did not file the complaint until August 1, 2008, beyond

the 15 calendar day time limit to do so. This finding is supported by

the record. On appeal complainant, who is represented by her attorney,

makes no comment.

Accordingly, the FAD's dismissal of the complaint for failure to timely

file the complaint is affirmed.1

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

March 6, 2009

__________________

Date

1 As we are affirming on this ground, we need not address the other

grounds of dismissal in the FAD.

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0120090114

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013

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