Lisa M. Barber, Complainant,v.Kenneth Y. Tomlinson, Chairman, Broadcasting Board of Governors, Agency.

Equal Employment Opportunity CommissionFeb 19, 2009
0120083721 (E.E.O.C. Feb. 19, 2009)

0120083721

02-19-2009

Lisa M. Barber, Complainant, v. Kenneth Y. Tomlinson, Chairman, Broadcasting Board of Governors, Agency.


Lisa M. Barber,

Complainant,

v.

Kenneth Y. Tomlinson,

Chairman,

Broadcasting Board of Governors,

Agency.

Appeal No. 0120083721

Agency No. OCR-0-821

DECISION

Complainant filed a timely appeal with this Commission from the agency's

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.

On April 7, 2008, complainant contacted an EEO Counselor. Informal

efforts to resolve complainant's concerns were unsuccessful.

On May 23, 2008, complainant filed a formal complaint claiming that

she was subjected to discrimination on the basis of disability (mental)

when:

1. On or about February 15, 1999, she was forced to resign (removed)

from federal service; and1,

2. During her period of employment she was placed on AWOL while under

a doctor's care.

In its decision dated July 22, 2008, the agency dismissed claim (1)

for raising the same matter before the Commission which complainant

previously elected to appeal to the Merit System Protection Board.

The agency also dismissed claims (1) for failure to state a claim

finding that complainant's MSPB case resulted in a settlement agreement

were complainant agreed to waived her right to pursue an EEO complaint

regarding her removal.

The agency dismissed claim (2) for untimely EEO counselor contact, and

for raising the same claim that was raised in a previous EEO complaint.

Claim (1)

The regulation set forth at 29 C.F.R. � 1614.107(a)(1) provides, in

relevant part, that an agency shall dismiss a complaint that states the

same claim that is pending before or has been decided by the agency or

Commission.

The agency dismissed claim (1) because complainant filed an appeal

of the removal action with the Merit Systems Protection Board (MSPB),

and subsequently entered into a settlement agreement. On May 1999, the

agency and complainant entered into a settlement agreement concerning

complainant's appeal to the MSPB regarding the issue of her constructive

removal. Paragraph 4 of the settlement agreement specifically states

that complainant waives "the right to file a complaint against [the

agency] pursuant to 29 CFR 1614." Since it is clear on the face of the

document that the parties intended the settlement agreement to be the

full and final resolution on the matter of the constructive removal,

it was properly dismissed for failure to state a claim, pursuant to 29

C.F.R. � 1614.107(a)(1).

Claim (2)

EEOC Regulation 29 C.F.R. � 1614.105(a)(1) requires that complaints of

discrimination should be brought to the attention of the Equal Employment

Opportunity Counselor within forty-five (45) days of the date of the

matter alleged to be discriminatory or, in the case of a personnel

action, within forty-five (45) days of the effective date of the action.

The Commission has adopted a "reasonable suspicion" standard (as opposed

to a "supportive facts" standard) to determine when the forty-five (45)

day limitation period is triggered. See Howard v. Department of the Navy,

EEOC Request No. 05970852 (February 11, 1999). Thus, 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.

EEOC regulations provide that the agency or the Commission shall extend

the time limits when the individual shows that she was not notified of the

time limits and was not otherwise aware of them, that she did not know

and reasonably should not have known that the discriminatory matter or

personnel action occurred, that despite due diligence she was prevented

by circumstances beyond her control from contacting the Counselor within

the time limits, or for other reasons considered sufficient by the agency

or the Commission.

The Commission determines that the agency properly dismissed complainant's

complaint for untimely EEO Counselor contact. The record reveals that

complainant asserts that she was placed in AWOL in 1998. The record

reflects, however, that complainant did not contact an EEO counselor

until approximately ten years later, April 7, 2008. The Commission

has consistently held that complainants must act with due diligence in

the pursuit of their claims or the doctrine of laches may be applied.

See O'Dell v. Department of Health and Human Services, EEOC Request

No. 05901130 (December 27, 1990). Accordingly, the agency's final

decision dismissing claim (2) for untimely EEO Counselor contact was

proper.

Accordingly, the agency's final decision dismissing complainant's

complaint is AFFIRMED.2

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

February 19, 2009

__________________

Date

1 The record reveals that complainant and the agency entered into

a settlement agreement wherein a removal action was cancelled and

complainant was allowed to resign from her position in May 1999.

2 Because of our disposition of this case, we determine that is

unnecessary to address the agency's alternate grounds of dismissal for

claims (1) and (2).

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0120083721

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013

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0120083721