Vienna M. Baches, Complainant,v.Mike Johanns, Secretary, Department of Agriculture, Agency.

Equal Employment Opportunity CommissionNov 16, 2005
01a54170 (E.E.O.C. Nov. 16, 2005)

01a54170

11-16-2005

Vienna M. Baches, Complainant, v. Mike Johanns, Secretary, Department of Agriculture, Agency.


Vienna M. Baches v. U.S. Department of Agriculture

01A54170

November 16, 2005

.

Vienna M. Baches,

Complainant,

v.

Mike Johanns,

Secretary,

Department of Agriculture,

Agency.

Appeal No. 01A54170

Agency No. 040683

DECISION

Upon review, the Commission finds that complainant's complaint was

properly dismissed pursuant to 29 C.F.R. � 1614.107(a)(2), on the grounds

of untimely EEO Counselor contact.

By letter dated June 3, 2003, complainant contacted the Commission,

claiming that on March 21, 2003, the agency terminated her from her agency

position, due to her disability. By letter to the agency's Office of

Civil Rights (OCR) dated June 25, 2003, complainant stated that she was

provided with the agency's address by the Commission, and addressed the

matter that was the subject of her letter to the Commission, dated June

3, 2003.

By letter dated April 9, 2004, the agency's OCR noted that it had

received copies of complainant's letters of June 3, 2003, and June 25,

2003, referenced above. The OCR noted that complainant's letters were

received by OCR on March 23, 2004, but that there was no record of receipt

of the letters prior to that date. The OCR indicated that complainant's

correspondence was forwarded to an �appropriate office� for processing,

noting that complainant's discrimination claims had not yet been raised

with an agency EEO Counselor.

The record contains an EEO Counselor's Report, identifying the date

of initial EEO contact in the following fashion: �6/18/04 with

this EEO Counselor;� and �(6/03/03 with EEOC).� The EEO Counselor's

Report indicated that complainant claimed that she was the victim of

unlawful employment discrimination on the basis of disability when :

(1) complainant was not promoted during her Student Career Experience

Program appointment, (2) she was not converted to full time employment,

and (3) her appointment was terminated on March 21, 2003, resulting

in loss of employment with the agency. Informal efforts to resolve the

matter was unsuccessful and on September 12, 2004, complainant filed

the instant EEO complaint.

On April 19, 2005, the agency issued a final decision, dismissing the

instant complaint on the grounds of untimely EEO Counselor contact.

The record in this case contains a copy of a memorandum from an agency

official dated March 23, 2005, accompanied by a copy of an EEO poster

that addresses the forty-five day period for timely contacting an EEO

Counselor. The agency official stated that this poster was posted in

areas commonly available to complainant from January 1, 2003, through

April 2003.

The record discloses that the most recent alleged discriminatory event

occurred on March 21, 2003. The record indicates that complainant wrote

a letter to the Commission on June 3, 2003, and to the agency's Office

of Civil Right's on June 25, 2003. However, even if the Commission

were to presume that complainant actually initiated EEO contact with

the agency in June 2003, such a contact would have been well beyond the

forty -five day limitation period with regard to the matters raised in the

instant complaint. We note, moreover, that complainant's correspondence

to the Commission on June 3, 2003, was also beyond the forty-five day

limitation period. On appeal, complainant has presented no persuasive

arguments or evidence warranting an extension of the time limit for

initiating EEO Counselor contact.

The agency's final decision dismissing complainant's complaint on the

grounds of untimely EEO contact 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

November 16, 2005

__________________

Date