01a55231
12-28-2005
Darcy L. Shimitz, Complainant, v. Mike Johanns, Secretary, Department of Agriculture, Agency.
Darcy L. Shimitz v. U.S. Department of Agriculture
01A55231
December 28, 2005
.
Darcy L. Shimitz,
Complainant,
v.
Mike Johanns,
Secretary,
Department of Agriculture,
Agency.
Appeal No. 01A55231
Agency No. 050289
DECISION
Upon review, the Commission finds that complainant's complaint was
properly dismissed pursuant to 29 C.F.R. � 1614.107(a)(2), for untimely
EEO Counselor contact. In her complaint, complainant alleged that she
was subjected to discrimination on the bases of disability and reprisal
for prior EEO activity when:
She was suspended from May 2 to May 15, 2004; and
She was denied a reasonable accommodation for her disability, most
recently on March 31, 2004.
The record discloses that the most recent alleged discriminatory event
occurred on May 2, 2004, but complainant did not initiate contact with
an EEO Counselor until August 24, 2004, which is beyond the forty-five
(45) day limitation period. On appeal, complainant maintains that upon
receiving the suspension decision letter on April 19, 2004 she called
the telephone number of the agency's Civil Rights office provided in
the letter �on or around April 19, 2004." Complainant's Affidavit on
Appeal. p. 2. She further avers �I was given yet another number to call,
. . .. I believe that I also contacted the EEO counselor in this case
a second time on or around June 2, 2004, after having conferred with my
representative at that time. The August 24, 2004 call to the counselor
was not my first contact with an EEO counselor concerning the Suspension
action, rather it was a follow-up call to inquire why my earlier calls
had not been returned.� Id.
The Commission finds complainant has not met her burden of establishing
that she timely contacted the EEO counselor. Nor has complainant
presented any persuasive arguments or evidence warranting an extension
of the time limit for initiating EEO Counselor contact. Accordingly, the
agency's final decision dismissing complainant's complaint 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
December 28, 2005
__________________
Date