0120114163
02-09-2012
Livier Alvarez, Complainant, v. Hillary Rodham Clinton, Secretary, Department of State, Agency.
Livier Alvarez,
Complainant,
v.
Hillary Rodham Clinton,
Secretary,
Department of State,
Agency.
Appeal No. 0120114163
Agency No. DOSF03211
DECISION
Complainant filed a timely appeal with this Commission from the
Agency's decision dated August 3, 2011, 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.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as
a Passport Specialist at the Agency’s passport office in San Francisco,
California.
On February 18, 2011, Complainant filed a formal complaint alleging that
the Agency subjected her to discrimination on the basis of disability
(hearing impairment) when there was a misunderstanding concerning her
leave while she was out on maternity leave, resulting in her receipt of a
letter demanding payment of $379.24 due to an over-payment while she was
out.1 In her formal complaint, Complainant stated she did not request
an interpreter to talk to her supervisor because she could comprehend
the supervisor by reading her lips.
The Agency dismissed the complaint, pursuant to 29 C.F.R. §�
�1614.107(a)(2), for untimely EEO Counselor contact. The instant appeal
followed.
ANALYSIS AND FINDINGS
The regulation set forth at 29 C.F.R. § 1614.107(a)(2) states, in
pertinent part, that an agency shall dismiss a complaint which fails
to comply with the applicable time limits contained in 29 C.F.R. §
1614.106(b) which, in turn, requires the filing of a formal complaint
within fifteen (15) days of receiving the notice of the right to do so.
The record discloses that the latest alleged discriminatory event occurred
on September 14, 2010, when Complainant received the over-payment
demand letter, but Complainant did not initiate contact with an EEO
Counselor until December 22, 2010, which is beyond the forty-five
(45) 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 states that the
reasons Complainant gave for being late in contacting an EEO counselor
were that she was caring for a new baby and her parents. Such reasons are
not sufficient to waive the time limit for contacting an EEO counselor.
Accordingly, the Agency's final decision dismissing Complainant's
complaint is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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), at 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 (S0610)
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 (Z0610)
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 9, 2012
__________________
Date
1 The Agency did not set forth the claim in its FAD. Additionally the
Agency failed to set forth specific dates in its decision. The information
was gleaned from the formal complaint and the EEO counselor’s
report. The Agency is cautioned as to leaving such information out of
its decisions.
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0120114163
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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