Helen Rhinesmith, et al., Complainant,v.John W. Snow, Secretary, Department of the Treasury, Agency.

Equal Employment Opportunity CommissionApr 7, 2003
01A20614_r (E.E.O.C. Apr. 7, 2003)

01A20614_r

04-07-2003

Helen Rhinesmith, et al., Complainant, v. John W. Snow, Secretary, Department of the Treasury, Agency.


Helen Rhinesmith, et al. v. Department of the Treasury

01A20614

April 7, 2003

.

Helen Rhinesmith, et al.,

Complainant,

v.

John W. Snow,

Secretary,

Department of the Treasury,

Agency.

Appeal No. 01A20614

Agency No. 00-0021C

Hearing No. 110-A0-8442X

DECISION

Complainant's class claims of discrimination were forwarded to an EEOC

Administrative Judge (AJ) for a certification determination. The AJ

dismissed the entire complaint on February 20, 2001, and the agency

adopted the AJ's findings on March 23, 2001. Complainant timely

appealed on November 1, 2001.<1> The AJ defined the complaint as

alleging discrimination on the bases of disability and reprisal for

prior EEO activity when:

Complainant was selected for a GS-962-7/8 position, but the agency would

not allow complainant to train for or assume the position;

Complainant was subjected to harassment and intimidation by a letter

from a general legal services attorney stating that complainant could

not work a shift or attend a training session if she did not sign an

acceptance letter;

The agency denied complainant's request for a reasonable accommodation

to change her duty hours from 4:00 p.m. - 2:30 a.m., to 7:00 a.m. - 3:30

p.m., in order to allow complainant's husband to drive her to work; and

The class was retaliated against and harassed by agency employees after

designating Person A (an attorney) as their representative.

The AJ found that complainant's disability claims involved harm personal

to complainant, and therefore did not allege class-wide discrimination.

Regarding the alleged class-wide discrimination on the basis of reprisal,

the AJ found that this class claim failed to state a claim. The AJ

explained that complainant's alleged protected activity was the hiring

of her attorney, and such action did not constitute protected activity.

The AJ also dismissed the entire complaint for untimely counselor contact,

finding that the alleged discrimination occurred on August 13, 2000,

but complainant did not contact an EEO Counselor until October 15, 2000.

The agency adopted the AJ's findings without substantive comment, and

complainant appealed.

On appeal, complainant, through her attorney, argues that her disability

claims were intended to be an individual complaint. The only class

claim involved the treatment received by persons who name complainant's

attorney as their representative. According to complainant's attorney,

the �precipitating event� for complainant's claim was an August 26, 2001

letter sent from the agency's labor attorneys to complainant's attorney.

Complainant also argues, however, that she initially contacted an EEO

counselor on October 11, 1999, regarding her class claim.<2> When the

agency failed to provide her with EEO Counseling, she filed a formal

complaint on November 17, 1999. The agency neglected to appoint an

EEO Counselor until March 2000. The EEO Counselor issued complainant

her notice of right to file a formal complaint on May 5, 2000, and

complainant filed another formal complaint on May 15, 2000.

A review of the record reveals that the AJ, agency, and complainant's

attorney all misstated several relevant dates in the present complaint.

Complainant wrote the agency on August 16, 1999, requesting changed duty

hours for the position offered to her on August 11, 1999. The agency,

via an August 25, 1999 letter from an attorney in its �General Legal

Services,� denied complainant's accommodation request. The letter

informed complainant that she could not attend training until it received

complainant's �valid acceptance� of the job offer.

The EEO Counselor's Report states that complainant first requested

counseling on October 15, 1999, but the agency failed to assign an EEO

Counselor until March 2000. Complainant submitted formal complaint

forms dated November 17, 1999, May 5, 2000, and May 15, 2000. All of

these complaints concern the agency's denial of complainant's reasonable

accommodation request, the agency's decision to bar complainant from

training classes until she formally accepted the job, and the harassment

all complainants receive who name complainant's attorney as their

representative. With respect to complainant's prior protected activity,

complainant notes that she received the agency's �outrageous� August 25,

1999 letter only a few days after designating her attorney in a separate,

prior EEO complaint pending before an AJ.

Complainant must raise claims of discrimination within forty-five (45)

days of their occurrence. See 29 C.F.R. � 1614.105(a)(1). The agency

may dismiss claims that fail to comply with this time limit. See 29

C.F.R. � 1614.107(a)(2). The time limitation is not triggered until a

complainant reasonably suspects discrimination, but before all the facts

that support a charge of discrimination have become apparent.

Complainant should have suspected discrimination in her individual,

disability-based claims, and her class-wide discrimination claim when she

received the agency's August 25, 1999 letter on, at the latest, August

27, 1999. There is no August 26, 2001 letter from the agency's labor

attorneys to complainant's attorney in the present record. Further,

this date is well after complainant sought counseling and filed her

formal complaints, and therefore, could not be the �precipitating event�

for complainant's claims. The Commission finds that complainant first

contacted an EEO Counselor on October 15, 1999. Complainant has failed

to explain her delay in contacting a counselor until after the 45-day

time limit expired. Accordingly, the agency's untimely counselor contact

dismissal of the class and individual complaints is AFFIRMED.<3>

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

April 7, 2003

__________________

Date

CERTIFICATE OF MAILING

For timeliness purposes, the Commission will presume that this decision

was received within five (5) calendar days after it was mailed. I certify

that this decision was mailed to complainant, complainant's representative

(if applicable), and the agency on:

__________________

Date

______________________________

1The agency failed to provide proof of the attorney's receipt.

Complainant's attorney contends he received the final decision on October

2, 2001.

2In his November 17, 1999 formal complaint, complainant only identified

the contact as having occurred in �early October.�

3Since the Commission affirmed the untimeliness dismissal, it will

not address the other grounds raised in the AJ's decision, nor whether

complainant's class claim meets certification requirements.