Mary J. Roberts, Complainant,v.Jo Anne B. Barnhart, Commissioner, Social Security Administration, Agency.

Equal Employment Opportunity CommissionOct 30, 2003
01A31456_r (E.E.O.C. Oct. 30, 2003)

01A31456_r

10-30-2003

Mary J. Roberts, Complainant, v. Jo Anne B. Barnhart, Commissioner, Social Security Administration, Agency.


Mary J. Roberts v. Social Security Administration

01A31456

October 30, 2003

.

Mary J. Roberts,

Complainant,

v.

Jo Anne B. Barnhart,

Commissioner,

Social Security Administration,

Agency.

Appeal No. 01A31456

Agency No. 02-0435-SSA

DECISION

Complainant initiated contact with the agency's EEO Office on April

26, 2002. On August 9, 2002, complainant filed a formal EEO complaint

wherein she claimed that she was discriminated against on the bases of

her race (Black), age (50), and disability (hypertension, tendinitis).

The agency defined the alleged discriminatory incident as being a meeting

on January 18, 2002, regarding the development of an Assistance Plan

for complainant. The record reveals that the Assistance Plan was issued

to complainant on February 6, 2002.

By decision dated November 29, 2002, the agency dismissed the complaint

on the grounds that complainant failed to initiate contact with an EEO

Counselor in a timely manner. The agency determined that complainant's

EEO contact on April 26, 2002, was more than 45 days after the meeting

of January 18, 2002. The agency further determined that complainant

has not provided adequate justification for an extension of the 45-day

limitation period.

On appeal, complainant contends that the agency was not accurate in

defining the scope of her complaint. According to complainant, her

complaint encompasses the period during which she was working under the

Assistance Plan. Complainant argues that she was subjected to a hostile

work environment during this period.

After a review of the record, the Commission finds that complainant has

presented no persuasive arguments or evidence warranting an extension of

the 45-day limitation period for initiating EEO contact. It is evident

from the language of the Assistance Plan that complainant's work was

going to be under a high level of scrutiny. Therefore, complainant should

have foreseen when she received the Assistance Plan that her work would

be reviewed in great detail. We find that the 45-day limitation period

for contacting an EEO Counselor commenced when complainant received the

Assistance Plan on February 6, 2002. Therefore, her contact of an EEO

Counselor on April 26, 2002 was untimely.

Accordingly, the agency's decision dismissing complainant's complaint

was proper pursuant to 29 C.F.R. � 1614.107(a)(2) and 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

October 30, 2003

__________________

Date