0120092492
09-09-2009
Rachael L. Ferruggia, Complainant, v. Robert M. Gates, Secretary, Department of Defense, (Department of Defense Education Activity), Agency.
Rachael L. Ferruggia,
Complainant,
v.
Robert M. Gates,
Secretary,
Department of Defense,
(Department of Defense Education Activity),
Agency.
Appeal No. 0120092492
Agency No. PEFY09040
DECISION
Complainant filed a timely appeal with this Commission from the
agency's decision dated May 18, 2009, 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. Upon review, the Commission finds that complainant's
complaint was properly dismissed pursuant to 29 C.F.R. � 1614.107(a)(2),
for untimely EEO Counselor contact.
In her complaint, complainant alleged that she was subjected to
discrimination on the basis of disability (auto immune disorder) when
her former supervisor provided unfavorable references to schools where
she had applied for positions.
The record discloses that complainant learned about the unfavorable
references on or about November 1, 2008, but complainant did not initiate
contact with an EEO Counselor until March 3, 2009, which is beyond
the forty-five (45) day limitation period. On appeal, complainant has
presented no persuasive arguments or evidence warranting an extension
of the time limit for initiating EEO Counselor contact. Complainant
states she does not recall having EEO training. However, the agency
provided a sign in list for EEO training which contains complainant's
initials. Complainant also asserts she was taking medication. We
have consistently held, in cases involving physical or mental health
difficulties, that an extension is warranted only where an individual is
so incapacitated by his condition that he is unable to meet the regulatory
time limits. See Davis v. United States Postal Service, EEOC Request
No. 05980475 (August 6, 1998); Crear v. United States Postal Service,
EEOC Request No. 05920700 (October 29, 1992). Complainant did not provide
any medical documentation indicating she was so incapacitated that she
could not timely contact an EEO counselor.
Accordingly, the agency's final decision dismissing complainant's
complaint is affirmed.
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
September 9, 2009
__________________
Date
2
0120092492
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
3
0120092492