0120080798
09-02-2010
Mary D. Shirley, Complainant, v. Kathleen Sebelius, Secretary, Department of Health and Human Services, (Indian Health Service) Agency.
Mary D. Shirley,
Complainant,
v.
Kathleen Sebelius,
Secretary,
Department of Health and Human Services,
(Indian Health Service)
Agency.
Appeal No. 0120080798
Agency No. IHS04002007
DECISION
Complainant filed a timely appeal with this Commission from the Agency's decision dated October 30, 2007, dismissing her complaint of unlawful employment discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq., Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
BACKGROUND
The record indicated that on July 5, 2007. Complainant contacted an EEO Counselor. When the matter was not resolved, Complainant filed a formal complaint on September 21, 2007. In her complaint, Complainant alleged that the Agency subjected her to discrimination on the bases of sex (female), disability (hip and foot injuries), and age (55 years old at the time of the alleged discrimination) when:
1. Starting on June 10, 2001, and continuing to April 2004, Complainant's requests for reasonable accommodation were ignored or declined;
2. Starting in June 2001, and continuing until 2005, Complainant's requests for a parking accommodation were ignored or declined;
3. Stating in June 2004 until 2006, Complainant's complaints concerning the difference in her pay when compared to previous similarly placed employees were ignored or denied;
4. On June 28, 2001, Complainant was not provided with the appropriate level of medical care for her on-the-job injury;
5. Starting in late 2001, Complainant was denied the use of the Physical Therapy Services at her facility;
6. After informing management on April 11, 2006, that she would require surgery follwed by a lengthy recovery period, Complainant was removed from her position. The position was posed for recruitment on April 12, 2006;
7. On April 29, 2006, Complainant was removed from her position; and
8. On January 20, 2007, Complainant was separated from the Agency and received a disability retirement.
It is noted that in her formal complaint, Complainant indicated that she was "unable to consider options or make decisions in [her] best interest until undergoing psychological counseling and appropriate medication." It was then she realized the magnitude of the discrimination.
The Agency dismissed Complainant's complaint pursuant to 29 C.F.R. �1614.107(a)(2) for failure to contact the EEO Counselor in a timely manner. The Agency noted that Complainant alleged events that spanned the time from June 2001 through her separation from the Agency effective January 20, 2007. The Agency indicated that Complainant's contact on July 5, 2007, was well beyond the 45 day time limit. As such, the Agency dismissed the matter at hand.
Complainant filed an appeal. On appeal, Complainant's counsel argued that Complainant was under "tremendous physical and psychological pain" and lacked family in the state of Arizona. Complainant's counsel requests that the 45 day time frame be extended for Complainant. The Agency requested that the Commission affirm its final decision.
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R. �1614.107(a)(2) states that the agency shall dismiss a complaint or a portion of a complaint that fails to comply with the applicable time limits contained in �1614.105, �1614.106 and �1614.204(c), unless the agency extends the time limits in accordance with �1614.604(c).
EEOC Regulation 29 C.F.R. �1614.105(a)(1) provides that an aggrieved person must initiate contact with an EEO Counselor within 45 days of the date of the matter alleged to be discriminatory or, in the case of a personnel action, within 45 days of the effective date of the action. EEOC Regulation 29 C.F.R. �1614.105(a)(2) allows the agency or the Commission to extend the time limit if the complainant can establish that complainant was not aware of the time limit, that complainant did not know and reasonably should not have known that the discriminatory matter or personnel action occurred, that despite due diligence complainant was prevented by circumstances beyond her control from contacting the EEO Counselor within the time limit, or for other reasons considered sufficient by the agency or Commission.
Upon review of the record, we find that Complainant should have contacted the EEO Counselor within 45 days of the effective date of her disability retirement in January 20, 2007. 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 she is unable to meet the regulatory time limits. See Davis v. U.S. Postal Serv., EEOC Request No. 05980475 (August 6, 1998); Crear v. U.S. Postal Serv., EEOC Request No. 05920700 (October 29, 1992). Upon review, we find that Complainant has not indicated that she was so incapacitated by her difficulties that she was unable to meet the 45 day time limit. As such, we find that the Agency's dismissal of the complaint pursuant to 29 C.F.R. �1614.107(a)(2) was appropriate.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency's final decision.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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), at 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 (S0610)
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 (Z0610)
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 2, 2010
__________________
Date
2
0120080798
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
4
0120080798