01a50809
03-09-2005
Christine L. Compton, Complainant, v. Lawrence M. Small, Secretary, Smithsonian Institution, Agency.
Christine L. Compton v. Smithsonian Institution
01A50809
March 9, 2005
.
Christine L. Compton,
Complainant,
v.
Lawrence M. Small,
Secretary,
Smithsonian Institution,
Agency.
Appeal No. 01A50809
Agency No. 0420081204
DECISION
Complainant filed a timely appeal with this Commission from the
agency's decision dated October 13, 2004, 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. In her complaint, complainant alleged that she was subjected
to discrimination on the basis of disability (physical) when:
1) on April 2, 2004, management denied her formal requests for reasonable
accommodations under the Rehabilitation Act of 1973; and
2) from April 16, 2004 to present, management forced complainant to
exhaust her paid leave and then take unpaid leave under the Family and
Medical Leave Act (FMLA).
The agency dismissed (1) and (2) pursuant to 29 C.F.R. � 1614.107
(a)(2), finding that the complainant failed to comply with 29 C.F.R. �
1614.105 (a)(1). More specifically, the agency dismissed (1) and (2)
stating that the complainant's initial contact with an EEO Counselor took
place on June 15, 2004, more than 29 days past the statutory 45-day time
limit. The agency cites complainant's informal complaint dated June 15,
2004, as evidence of complainant's untimely EEO contact.
The complainant contends that she initially contacted her EEO Counselor
on April 6, 2004. As evidence of her timely EEO contact, the complainant
cites a copy of her informal complaint dated April 7, 2004. Additionally,
the complainant submits copies of numerous email messages sent between
her and the EEO Counselor between April 6 and April 7, 2004.
The record reflects that the record contains two informal complaints
dated April 7, 2004 and June 15, 2004. The complainant asserts that
she submitted the June 15 complaint only upon the instruction of her EEO
Counselor to clarify the allegations in her April 7 complaint. Complainant
further asserts that the EEO Counselor assured her that re-filing her
informal complaint would not compromise the timely filing of her formal
complaint. Moreover, the complainant alleges that she was unaware that she
was filing an entirely new charge on June 15 because she had followed the
EEO Counselor's instructions. Here, we find that a reasonable person in
complainant's position would have reasonably relied on the representations
of her EEO Counselor.
An aggrieved individual must contact an EEO counselor within 45 days of
the alleged discriminatory occurrence. 29 C.F.R. � 1614.105(a)(1). This
time limit may be extended, however, if the individual was unaware of the
time limits, if she did not know or could not reasonably have known that
discrimination had occurred, if she was prevented from timely contacting
a counselor by circumstances beyond her control, or for any other reasons
considered sufficient by the Commission. 29 C.F.R. � 1614.105(a)(2).
In addition, the statutory 45-day time limit is subject to waiver,
estoppel, and equitable tolling pursuant to 29 C.F.R. � 1614.604(c). The
Commission has defined "equitable estoppel" as "the principle by
which a party is precluded by his own acts, words, or silence from
asserting a right to which he otherwise would be entitled against
another who rightfully relied on the party's acts, words, or silence
to his detriment." Jackson v. United States Postal Service, EEOC Appeal
No. 01931557 (February 17, 1994) (citation omitted).
Given these facts, we find that complainant did act with due
diligence in protecting her rights, as required under 29 C.F.R. �
1614.105(a)(2). Therefore, the Commission finds that the time period for
EEO counselor contact should be tolled for the period of time beginning
April 6, 2004, and ending June 15, 2004. Accordingly, the agency's
final decision dismissing (1) and (2) of the complainant's complaint
is REVERSED.
ORDER (E0900)
The agency is ordered to process the remanded claims in accordance with
29 C.F.R. � 1614.108. The agency shall acknowledge to the complainant
that it has received the remanded claims within thirty (30) calendar
days of the date this decision becomes final. The agency shall issue
to complainant a copy of the investigative file and also shall notify
complainant of the appropriate rights within one hundred fifty (150)
calendar days of the date this decision becomes final, unless the matter
is otherwise resolved prior to that time. If the complainant requests a
final decision without a hearing, the agency shall issue a final decision
within sixty (60) days of receipt of complainant's request.
A copy of the agency's letter of acknowledgment to complainant and a
copy of the notice that transmits the investigative file and notice of
rights must be sent to the Compliance Officer as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0501)
Compliance with the Commission's corrective action is mandatory.
The agency shall submit its compliance report within thirty (30)
calendar days of the completion of all ordered corrective action. The
report shall be submitted to the Compliance Officer, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. The agency's report must contain supporting
documentation, and the agency must send a copy of all submissions to
the complainant. If the agency does not comply with the Commission's
order, the complainant may petition the Commission for enforcement
of the order. 29 C.F.R. � 1614.503(a). The complainant also has the
right to file a civil action to enforce compliance with the Commission's
order prior to or following an administrative petition for enforcement.
See 29 C.F.R. �� 1614.407, 1614.408, and 29 C.F.R. � 1614.503(g).
Alternatively, the complainant has the right to file a civil action on
the underlying complaint in accordance with the paragraph below entitled
"Right to File A Civil Action." 29 C.F.R. �� 1614.407 and 1614.408.
A civil action for enforcement or a civil action on the underlying
complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c)
(1994 & Supp. IV 1999). If the complainant files a civil action, the
administrative processing of the complaint, including any petition for
enforcement, will be terminated. See 29 C.F.R. � 1614.409.
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 (R0900)
This is a decision requiring the agency to continue its administrative
processing of your complaint. However, if you wish to file a civil
action, you have the right to file such action in an appropriate United
States District Court within ninety (90) calendar days from the date
that you receive this decision. In the alternative, you may file a
civil action after one hundred and eighty (180) calendar days of the date
you filed your complaint with the agency, or filed your appeal with the
Commission. 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. 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
March 9, 2005
__________________
Date