01A03358
06-14-2001
Mary Kiernan Winfield, Complainant, v. William A. Halter, Acting Commissioner, Social Security Administration, Agency.
Mary Kiernan Winfield v. Social Security Administration
01A03358
June 14, 2001
.
Mary Kiernan Winfield,
Complainant,
v.
William A. Halter,
Acting Commissioner,
Social Security Administration,
Agency.
Appeal No. 01A03358
Agency No. 00-0109-SSA
DECISION
Upon review, the Commission finds that the agency's March 14, 2000
decision dismissing complainant's complaint was proper. Complainant
alleges that she was discriminated against on the bases of disability
and sex when she was subjected to continual intentional harassment, which
forced her to take a demotion, receive a reprimand, and later caused her
resign in May 1991. The agency dismissed the complaint pursuant to 29
C.F.R. � 1614.107(a)(2) for untimely EEO Counselor contact. Complainant
did not initiate EEO Counselor contact until November 8, 1999, which is
beyond the 45 day limitation. Complainant argues that the time limit
should be extended because she was not aware of the time limits, and she
was �grief-strickened, depressed, shocked, humiliated and devastated� and,
therefore, was not able to pursue her rights.
The agency does not submit specific evidence that EEO notices were
posted. Therefore, the agency has failed to show that complainant
had constructive notice of the deadlines. However, complainant waited
over eight years before contacting an EEO Counselor. The Commission
has held that complainants must act with due diligence in the pursuit
of their claims or the doctrine of laches may be applied. The doctrine
of laches is an equitable remedy under which an individual's failure to
diligently pursue her actions could bar her claim. Since complainant
did not act with reasonable diligence in contacting the EEO Counselor,
the doctrine of laches requires dismissal.
Further, complainant does not show that she was so incapacitated as
to render her unable to make timely contact with an EEO Counselor.
Complainant does not present adequate justification to warrant an
extension of the time limit for initiating EEO Counselor contact.
The agency's decision dismissing complainant's complaint is AFFIRMED
for the reasons set forth herein.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0900)
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
June 14, 2001
__________________
Date