Christine L. Compton, Complainant,v.Lawrence M. Small, Secretary, Smithsonian Institution, Agency.

Equal Employment Opportunity CommissionMar 9, 2005
01a50809 (E.E.O.C. Mar. 9, 2005)

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