0120101499
07-11-2012
Linda A. Thompson, Complainant, v. Tom J. Vilsack, Secretary, Department of Agriculture (Forest Service), Agency.
Linda A. Thompson,
Complainant,
v.
Tom J. Vilsack,
Secretary,
Department of Agriculture
(Forest Service),
Agency.
Appeal No. 0120101499
Hearing Nos. 490-2007-00191X, 490-2008-00189X, 490-2009-00109X
Agency Nos. FS-2006-02391, FS-2006-01952, FS-2008-00612
DISMISSAL OF APPEAL
By Notice of Appeal submitted to the Commission by facsimile transmitted to the Commission on March 4, 2010, Complainant filed an appeal with this Commission from the December 4, 2009 Final Agency decision concerning her EEO complaint of unlawful employment discrimination in violation of Title VII of the Civil Rights Act (Title VII) (42 U.S.C. � 2000e et seq.), the Rehabilitation Act (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. For the following reasons, the Commission DISMISSES the instant appeal.
BACKGROUND
At the time of the relevant events, Complainant worked as a Resource Assistant, GS-l102-8, for the Agency's Forest Service at the Ozark St. Francis National Forest in Russellville, Arkansas. On July 7, 2006, Complainant filed a complaint (Agency case number FS-2006-01952) in which she alleged discrimination on the bases of race, (African American), sex (female), age (60), and in reprisal for prior EEO activity when:
1. On February 2, 2006, during an Automated Timber Sales Accounting training workshop, management allowed the session to turn into an opportunity for her coworkers to verbally attack her, and to solicit negative feedback about her;
2. On April 18, 2006, in response to an electronic mail message, an identified Resource Clerk, Bayou Buffalo Ranger district sent an electronic mail message to four identified Agency officials and Complainant containing slanderous and malicious statements regarding Complainant; and
3. On an ongoing basis, as a result of Complainant's supervisor's actions, co-workers are requesting assistance from Resource Clerks in other forests and districts rather than request the information from Complainant.
In Agency case number FS-2006-02391, Complainant alleged discrimination on the bases of race, sex (female), age (60), and in reprisal for prior EEO activity when:
4. On July 7, 2006, an identified Agency Ecosystems Staff Officer, stood up during a meeting and raised his voice and pointed his finger at Complainant in a threatening and intimidating manner; and
5. On July 17, 2006, Complainant was issued a Letter of Direction, which was later discussed during a meeting with other Forest employees.
In a complaint dated August 13, 2008, (Agency case number FS-2008-00612), Complainant alleged discrimination on the bases of race (African American), sex (female), age (60), disability, and in reprisal for prior EEO activity when:
6. On an unspecified date, in an effort to coerce Complainant to retire, management denied Complainant's telework accommodation requests first made orally and then again on March 14, 2008;
7. On March 27, 2008, Complainant's request to participate in the leave donor program was denied;
8. On February 4, 2008, through April 17, 2008, Complainant was placed on Absent without Leave (AWOL) for approximately 427.5 hours; and
9. From July 6 to 19, 2008, Complainant was suspended for fourteen days.
After investigation of Complainant's complaints, Complainant was notified of her right to request a hearing. Complainant requested a hearing before an Administrative Judge (AJ). The AJ conducted a hearing on Complainant's complaints August 19, 20, and 21, 2009. On October 13, 2009, the AJ issued his Decision, finding that Complainant failed to prove that discrimination on any basis occurred as alleged. Thereafter, on December 4, 2009, the Agency issued a Final Order, fully implementing the AJ's Decision.
A copy of the certified mail return receipt card reveals that the Agency's Final Order was received at Complainant's attorney's address of record on December 14, 2009. A review of the Final Order reveals that the Agency properly advised Complainant that she had 30 calendar days after receipt of its Final Order to file her appeal with the Commission. Complainant's appeal was filed beyond the 30-day time limit. Complainant has not offered adequate justification for an extension of the applicable time limit for filing her appeal.
CONCLUSION
Accordingly, Complainant's March 4, 2010 appeal is hereby DISMISSED. See 29 C.F.R. � 1614.403(c).
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
July 11, 2012
__________________
Date
2
0120101499
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120101499