01a53048
07-28-2005
Patricia A. Huston, Complainant, v. Carlos M. Gutierrez, Secretary, Department of Commerce, Agency.
Patricia A. Huston v. Department of Commerce
01A53048
July 28, 2005
.
Patricia A. Huston,
Complainant,
v.
Carlos M. Gutierrez,
Secretary,
Department of Commerce,
Agency.
Appeal No. 01A53048
Agency No. 04-63-00172
DECISION
Upon review, the Commission finds that the complainant's complaint was
properly dismissed pursuant to 29 C.F.R. � 1614.107(a)(2), for untimely
EEO Counselor contact. In her complaint, the complainant claimed that
she was subjected to discrimination based on her sex (female) when her
supervisor, during a trip, largely while severely intoxicated, engaged in
sexually charged misconduct, ranging from swimming in a hotel pool nude
and yelling for those around her to join in, to asking the complainant
to join her in sexual activity in a hotel room with a man who was present.
The record discloses that the alleged discriminatory events occurred
on the evening of May 6, 2004 and the morning of May 7, 2004, but
complainant did not initiate contact with an EEO counselor until July
19, 2004, which is beyond the forty-five (45) day limitation period.
On appeal, the complainant reiterates the reason she previously gave
for not timely contacting an EEO counselor, i.e., she contacted other
management first. But, these contacts did not toll the time limit to seek
EEO counseling. The complainant has not presented persuasive arguments
or evidence warranting an extension of the time limit for initiating EEO
counselor contact. Accordingly, the agency's final decision dismissing
the complainant's complaint is affirmed.<1>
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
July 28, 2005
__________________
Date
1The final agency decision (FAD) also dismissed the complainant for
failure to state a claim. Because we affirm the FAD's dismissal for
failure to timely seek EEO counseling, we need not address whether the
complaint states a claim.