0120071321
07-10-2009
Sandra D. Haste-Conner, Complainant, v. Tom J. Vilsack, Secretary, Department of Agriculture, Agency.
Sandra D. Haste-Conner,
Complainant,
v.
Tom J. Vilsack,
Secretary,
Department of Agriculture,
Agency.
Appeal No. 0120071321
Agency No. OIG-2005-01733
DECISION
Complainant appeals to the Commission from the agency's decision dated
December 8, 2006, finding no discrimination. In her complaint, dated
January 4, 2005, complainant alleged discrimination based on disability
when: (1) on July 1, 2003, her supervisor placed her on leave restriction;
(2) on June 25, 2004, the supervisor confiscated her government weapon
which would not allow her to perform certain duties of her position;
(3) on September 24, 2004, she submitted an application for the Voluntary
Leave Transfer Program for which she received no response; and (4) since
December 2004, she had not received an accounting for her pay and leave.
After completion of the investigation of the complaint, complainant
elected for a final agency decision without a hearing. The agency then
issued its decision concluding that claims (1) and (2) were untimely
and it asserted legitimate, nondiscriminatory reasons for its actions
in claims (3) and (4), which complainant failed to rebut.
With regard to claims (1) and (2), the record indicates that the alleged
incidents occurred on July 1, 2003, and June 25, 2004, respectively.
Complainant contacted an EEO Counselor with regard to the matters
on November 30, 2004, which was beyond the 45-day time limit set by
the regulations. Despite complainant's contentions, we find that these
incidents, i.e., the denial of leave and the removal of her firearm, were
separate and discrete acts. On appeal, complainant does not provide any
evidence that she was not aware of the requisite time limit or she was so
physically or emotionally incapacitated as to be unable to make timely
EEO Counselor contact at the time of the alleged incidents. Therefore,
we find that the agency's dismissal of claims (1) and (2) due to untimely
EEO Counselor contact was proper pursuant to 29 C.F.R. �1614.107(a)(2).
Turning to claims (3) and (4), after a review of the record, the
Commission, assuming arguendo that complainant had established a prima
facie case of discrimination, finds that the agency has articulated
legitimate, nondiscriminatory reasons for the alleged incidents.
The record indicates that at the time alleged incidents, complainant
was a Senior Special Agent, GS-1811-14/2, Homeland and Security and
Protective Operations, Office of Inspector General (OIG), in the agency's
Headquarters, Washington, D.C. The record also indicates that complainant
subsequently resigned from her position in order to qualify for disability
retirement benefits in April 2005.
With regard to claim (3), complainant's supervisor indicated that
the alleged leave transfer request was initially denied because it
was signed and submitted by complainant's husband without providing
any necessary documentation indicating that he had the authority to
represent complainant. Thereafter, the supervisor asked complainant
for medically acceptable documentation to support her continued absence.
In response, complainant's husband sent a letter to the agency indicting
that complainant was totally disabled and he was resubmitting the
application on behalf of complainant to become a recipient under the
leave transfer program. The agency thereafter enrolled complainant in the
Voluntary Leave Transfer Program on January 21, 2005, after her husband
authorized them to use the medical information that complainant submitted
in support of her request for disability retirement. The agency stated
that complainant subsequently received a total donation of 10 hours.
On March 8, 2005, when the agency received notification that her
disability retirement had been approved, she was withdrawn from the
program.
With regard to claim (4), the agency stated that in a letter dated
December 27, 2004, its Human Resources sent a letter to complainant
acknowledging the receipt of her application for disability retirement and
her application to participate in the Voluntary Leave Transfer Program.
Therein, complainant was also provided with an accounting of her leave
balances. On appeal, complainant does not dispute this.
Assuming (without deciding) that complainant was an individual with a
disability, the Commission finds that complainant failed to show that she
was denied a reasonable accommodation or that any agency actions were
motivated by discrimination. There is no evidence that complainant
requested any accommodation to perform the duties of her position.
In fact, during the relevant time period at issue, complainant clearly
indicated that she was not able to perform the essential functions of
her position.
Accordingly, the agency's decision finding no discrimination 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
7/10/09
__________________
Date
2
0120071321
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013