01a54170
11-16-2005
Vienna M. Baches, Complainant, v. Mike Johanns, Secretary, Department of Agriculture, Agency.
Vienna M. Baches v. U.S. Department of Agriculture
01A54170
November 16, 2005
.
Vienna M. Baches,
Complainant,
v.
Mike Johanns,
Secretary,
Department of Agriculture,
Agency.
Appeal No. 01A54170
Agency No. 040683
DECISION
Upon review, the Commission finds that complainant's complaint was
properly dismissed pursuant to 29 C.F.R. � 1614.107(a)(2), on the grounds
of untimely EEO Counselor contact.
By letter dated June 3, 2003, complainant contacted the Commission,
claiming that on March 21, 2003, the agency terminated her from her agency
position, due to her disability. By letter to the agency's Office of
Civil Rights (OCR) dated June 25, 2003, complainant stated that she was
provided with the agency's address by the Commission, and addressed the
matter that was the subject of her letter to the Commission, dated June
3, 2003.
By letter dated April 9, 2004, the agency's OCR noted that it had
received copies of complainant's letters of June 3, 2003, and June 25,
2003, referenced above. The OCR noted that complainant's letters were
received by OCR on March 23, 2004, but that there was no record of receipt
of the letters prior to that date. The OCR indicated that complainant's
correspondence was forwarded to an �appropriate office� for processing,
noting that complainant's discrimination claims had not yet been raised
with an agency EEO Counselor.
The record contains an EEO Counselor's Report, identifying the date
of initial EEO contact in the following fashion: �6/18/04 with
this EEO Counselor;� and �(6/03/03 with EEOC).� The EEO Counselor's
Report indicated that complainant claimed that she was the victim of
unlawful employment discrimination on the basis of disability when :
(1) complainant was not promoted during her Student Career Experience
Program appointment, (2) she was not converted to full time employment,
and (3) her appointment was terminated on March 21, 2003, resulting
in loss of employment with the agency. Informal efforts to resolve the
matter was unsuccessful and on September 12, 2004, complainant filed
the instant EEO complaint.
On April 19, 2005, the agency issued a final decision, dismissing the
instant complaint on the grounds of untimely EEO Counselor contact.
The record in this case contains a copy of a memorandum from an agency
official dated March 23, 2005, accompanied by a copy of an EEO poster
that addresses the forty-five day period for timely contacting an EEO
Counselor. The agency official stated that this poster was posted in
areas commonly available to complainant from January 1, 2003, through
April 2003.
The record discloses that the most recent alleged discriminatory event
occurred on March 21, 2003. The record indicates that complainant wrote
a letter to the Commission on June 3, 2003, and to the agency's Office
of Civil Right's on June 25, 2003. However, even if the Commission
were to presume that complainant actually initiated EEO contact with
the agency in June 2003, such a contact would have been well beyond the
forty -five day limitation period with regard to the matters raised in the
instant complaint. We note, moreover, that complainant's correspondence
to the Commission on June 3, 2003, was also beyond the forty-five 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.
The agency's final decision dismissing complainant's complaint on the
grounds of untimely EEO contact is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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
November 16, 2005
__________________
Date