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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