01981812
03-24-1999
Benzena M. Brown, Appellant, v. William S. Cohen, Secretary, Department of Defense, (Defense Finance and Accounting Service), Agency.
Benzena M. Brown v. Department of Defense
01981812
March 24, 1999
Benzena M. Brown, )
Appellant, )
)
v. ) Appeal No. 01981812
) Agency No. DFAS-DE-SANB-97-044
William S. Cohen, )
Secretary, )
Department of Defense, )
(Defense Finance and Accounting )
Service), )
Agency. )
)
DECISION
The Commission finds that the agency's December 4, 1997 decision
dismissing appellant's complaint, inter alia, on the basis of
untimely complaint filing is proper pursuant to the provisions of 29
C.F.R. �1614.107(b).
On July 31, 1997, the agency sent to appellant, by certified mail, the
notice of the right to file a formal complaint. Said notice advised
appellant that she had to file her formal complaint of discrimination
within 15 calendar days of her receipt of the notice. The record shows
that appellant received the notice on August 18, 1997.<1> Appellant's
formal complaint was postmarked September 4, 1997, and received by the
agency on September 8, 1997.
By letter dated September 30, 1997, the agency requested further
information from appellant to clarify her formal complaint. Appellant was
advised that her "response to this request for additional information
must be received within 15 calendar days after you receive this letter".
Appellant received said request on October 7, 1997. However, she did
not provide the information requested by the agency.
On December 4, 1997, the agency issued a final decision dismissing the
complaint on the grounds of untimely complaint filing and failure to
respond to the agency's request for clarification. On appeal, appellant
submits an affidavit stating that she did not file the complaint within
the 15-day time limit because TC in Labor Relations "agreed" to allow
her to postmark her complaint by September 4, 1997. She further states
that although her signature shows that she received the agency's request
for clarification on October 7, 1997, she does not recall signing the
receipt or seeing the letter as a result of her mental state (stress).
In response to appellant's appeal, the agency provides an affidavit from
TC in which he states that during their conversation, appellant told him
that she had not received the complaint package. He does not mention
any conversation concerning the postmark in question. The agency also
provides an affidavit from AW in which she states that she explained to
appellant that a complaint must be filed or postmarked no later than
the 15th day and that if it's filed later than that term, then it can
be dismissed.
Based on the foregoing, we find that appellant failed to file her
complaint within the 15-day time limit provided by EEOC Regulations.
We also find that she failed to provide evidence sufficient to equitably
toll the 15 day time limit. In this regard, appellant has not shown
that she was incapacitated to such an extent that she was unable to file
the complaint in a timely manner. Accordingly, the agency's decision
dismissing the complaint is AFFIRMED pursuant to 29 C.F.R. �1614.107(b).
We need not address the agency's alternative grounds for dismissal.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. �1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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. �l6l4.604(c).
RIGHT TO FILE A CIVIL ACTION (S0993)
It is the position of the Commission that 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.
You should be aware, however, that courts in some jurisdictions have
interpreted the Civil Rights Act of 1991 in a manner suggesting that
a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the
date that you receive this decision. To ensure that your civil action
is considered timely, you are advised to file it WITHIN THIRTY (30)
CALENDAR DAYS from the date that you receive this decision or consult
an attorney concerning the applicable time period in the jurisdiction
in which your action would be filed. 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 (Z1092)
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:
March 24, 1999
DATE Ronnie Blumenthal, Director
Office of Federal Operations
1 Therefore, the 15-day time limit expired on September 2, 1997.