0120083721
02-19-2009
Lisa M. Barber, Complainant, v. Kenneth Y. Tomlinson, Chairman, Broadcasting Board of Governors, Agency.
Lisa M. Barber,
Complainant,
v.
Kenneth Y. Tomlinson,
Chairman,
Broadcasting Board of Governors,
Agency.
Appeal No. 0120083721
Agency No. OCR-0-821
DECISION
Complainant filed a timely appeal with this Commission from the agency's
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.
On April 7, 2008, complainant contacted an EEO Counselor. Informal
efforts to resolve complainant's concerns were unsuccessful.
On May 23, 2008, complainant filed a formal complaint claiming that
she was subjected to discrimination on the basis of disability (mental)
when:
1. On or about February 15, 1999, she was forced to resign (removed)
from federal service; and1,
2. During her period of employment she was placed on AWOL while under
a doctor's care.
In its decision dated July 22, 2008, the agency dismissed claim (1)
for raising the same matter before the Commission which complainant
previously elected to appeal to the Merit System Protection Board.
The agency also dismissed claims (1) for failure to state a claim
finding that complainant's MSPB case resulted in a settlement agreement
were complainant agreed to waived her right to pursue an EEO complaint
regarding her removal.
The agency dismissed claim (2) for untimely EEO counselor contact, and
for raising the same claim that was raised in a previous EEO complaint.
Claim (1)
The regulation set forth at 29 C.F.R. � 1614.107(a)(1) provides, in
relevant part, that an agency shall dismiss a complaint that states the
same claim that is pending before or has been decided by the agency or
Commission.
The agency dismissed claim (1) because complainant filed an appeal
of the removal action with the Merit Systems Protection Board (MSPB),
and subsequently entered into a settlement agreement. On May 1999, the
agency and complainant entered into a settlement agreement concerning
complainant's appeal to the MSPB regarding the issue of her constructive
removal. Paragraph 4 of the settlement agreement specifically states
that complainant waives "the right to file a complaint against [the
agency] pursuant to 29 CFR 1614." Since it is clear on the face of the
document that the parties intended the settlement agreement to be the
full and final resolution on the matter of the constructive removal,
it was properly dismissed for failure to state a claim, pursuant to 29
C.F.R. � 1614.107(a)(1).
Claim (2)
EEOC Regulation 29 C.F.R. � 1614.105(a)(1) requires that complaints of
discrimination should be brought to the attention of the Equal Employment
Opportunity Counselor within forty-five (45) days of the date of the
matter alleged to be discriminatory or, in the case of a personnel
action, within forty-five (45) days of the effective date of the action.
The Commission has adopted a "reasonable suspicion" standard (as opposed
to a "supportive facts" standard) to determine when the forty-five (45)
day limitation period is triggered. See Howard v. Department of the Navy,
EEOC Request No. 05970852 (February 11, 1999). Thus, the time limitation
is not triggered until a complainant reasonably suspects discrimination,
but before all the facts that support a charge of discrimination have
become apparent.
EEOC regulations provide that the agency or the Commission shall extend
the time limits when the individual shows that she was not notified of the
time limits and was not otherwise aware of them, that she did not know
and reasonably should not have known that the discriminatory matter or
personnel action occurred, that despite due diligence she was prevented
by circumstances beyond her control from contacting the Counselor within
the time limits, or for other reasons considered sufficient by the agency
or the Commission.
The Commission determines that the agency properly dismissed complainant's
complaint for untimely EEO Counselor contact. The record reveals that
complainant asserts that she was placed in AWOL in 1998. The record
reflects, however, that complainant did not contact an EEO counselor
until approximately ten years later, April 7, 2008. The Commission
has consistently held that complainants must act with due diligence in
the pursuit of their claims or the doctrine of laches may be applied.
See O'Dell v. Department of Health and Human Services, EEOC Request
No. 05901130 (December 27, 1990). Accordingly, the agency's final
decision dismissing claim (2) for untimely EEO Counselor contact was
proper.
Accordingly, the agency's final decision dismissing complainant's
complaint is AFFIRMED.2
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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 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 (S0408)
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 (Z1008)
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
February 19, 2009
__________________
Date
1 The record reveals that complainant and the agency entered into
a settlement agreement wherein a removal action was cancelled and
complainant was allowed to resign from her position in May 1999.
2 Because of our disposition of this case, we determine that is
unnecessary to address the agency's alternate grounds of dismissal for
claims (1) and (2).
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0120083721
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120083721