01A21164_r
03-27-2002
Lisa A. Luciano, Complainant, v. Paul H. O'Neill, Secretary, Department of the Treasury, Agency.
Lisa A. Luciano v. Department of the Treasury
01A21164
March 27, 2002
.
Lisa A. Luciano,
Complainant,
v.
Paul H. O'Neill,
Secretary,
Department of the Treasury,
Agency.
Appeal No. 01A21164
Agency No. 02-3006
DECISION
Upon review, the Commission finds that complainant's complaint was
properly dismissed for untimely EEO Counselor contact, pursuant to 29
C.F.R. � 1614.107(a)(2).<1> Complainant claims that she was discriminated
against on the basis of disability (health problems) when:
On March 21, 2001, complainant was notified that her temporary detail
in the Buffalo office was being terminated on April 7, 2001, and,
complainant was to report back to her prior position in the ACS office
located in Cheektowaga;
Management did not approve complainant's April 19, 2001 hardship
reassignment/relocation request to remain in the Buffalo post of duty;
Between October 2000 and May 16, 2001, management continuously requested
medical documentation from complainant; and
In a letter dated May 16, 2001, management threatened to place
complainant in absent without leave (AWOL) status which could result
in disciplinary action up to and including removal from the Service.
EEOC Regulation 29 C.F.R. � 1614.105(a)(1) requires complaints of
discrimination to be brought to the attention of the EEO Counselor within
forty-five (45) days of the date of the claimed discriminatory matter,
or, in the case of a personnel action, within forty-five (45) days of
the effective date of the action. The Commission's regulations, however,
provide that the time limit will be extended when the complainant shows
that he or she was not notified of the time limits and was not otherwise
aware of them, that he or she did not know and reasonably should not
have known that the discriminatory matter or personnel action occurred,
that despite due diligence he or she was prevented by circumstances
beyond his or her control from contacting the counselor within the time
limits, or for other reasons considered sufficient by the agency or the
Commission. See 29 C.F.R. � 1614.105(a)(2).
According to the agency, complainant received the letter regarding AWOL
status on May 17, 2001, but complainant did not initiate contact with an
EEO Counselor until July 11, 2001, which is beyond the forty-five (45)
day limitation period. Complainant does not dispute that she received the
May 16, 2001 letter regarding AWOL status on May 17, 2001. The Commission
finds that complainant should have reasonably suspected discrimination
by May 17, 2001, the last date on which the claimed discrimination
occurred, which was more than 45 days before her initial contact with an
EEO Counselor. Furthermore, the record clearly indicates that complainant
did not contact an EEO Counselor with the intent to pursue counseling with
regard to the instant complaint until July 11, 2001. 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
March 27, 2002
__________________
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
______________________________
1Since we are affirming the agency's dismissal of complainant's
complaint on the ground of untimely EEO Counselor contact, we will not
address the agency's alternative grounds for dismissal, i.e., that some
of complainant's claims are moot or allege that a proposal to take a
personnel action, or other preliminary step to taking a personnel action
is discriminatory.