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