0120103508
04-28-2011
Loretta Hines, Complainant, v. Michael J. Astrue, Commissioner, Social Security Administration, Agency.
Loretta Hines,
Complainant,
v.
Michael J. Astrue,
Commissioner,
Social Security Administration,
Agency.
Appeal No. 0120103508
Hearing No. 440-2010-0008X
Agency No. CHI-09-0873-SSA
DECISION
Upon review, the Commission finds that the Agency’s decision dated
July 29, 2010, dismissing Complainant’s complaint due to untimely EEO
Counselor contact is proper pursuant to 29 C.F.R. § 1614.107(a)(2).
The Agency’s decision dismissing the complaint is AFFIRMED.
BACKGROUND
In her complaint, dated October 6, 2009, Complainant, a Case Technician,
GS-6, at the Agency’s Office of Disability Adjudication and Review,
Chicago, Illinois, alleged discrimination based on age (over 40) and in
reprisal for prior EEO activity when she was issued a reprimand for not
complying with a directive to complete her work. Report of Investigation
(ROI), Exhibit (Ex.) 1, at 1. The record indicates that Complainant
contacted an EEO Counselor with regard to her complaint on September
11, 2009. ROI, Ex. 3, at 1. After completion of the investigation of
the complaint, Complainant requested a hearing which was denied by an
EEOC Administrative Judge (AJ) due to untimely EEO Counselor contact.
AJ’s June 25, 2010 Order of Dismissal. In accordance with the AJ’s
Order, the Agency issued its decision and dismissed the complaint due
to untimely EEO Counselor contact. Complainant appeals.
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R. § 1614.105(a)(1) requires that complaints of
discrimination be brought to the attention of the EEO Counselor within
45 days of the alleged discriminatory event, or the effective date of
an alleged discriminatory personnel action.
The record indicates that Complainant received the alleged reprimand on
July 17, 2009. ROI, Ex. 15. However, Complainant did not contact an
EEO Counselor regarding the matter until September 11, 2009, which was
beyond the 45-day time limit set by the regulations. We note that in the
July 17, 2009 reprimand, Complainant was clearly informed of the 45-day
time limit to contact an EEO Counselor if she believed the reprimand
was based on discrimination. ROI, Ex. 15, at 4. On appeal, Complainant
fails to present adequate justification to warrant an extension of the
applicable time limit for contacting an EEO Counselor.
CONCLUSION
Accordingly, the Agency’s final decision is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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), at 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 (S0610)
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 (Z0610)
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
4/28/11
__________________
Date
2
0120103508
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013