closed0120133257
12-06-2013
Complainant, v. Chuck Hagel, Secretary, Department of Defense (Army & Air Force Exchange Service), Agency.
Complainant,
v.
Chuck Hagel,
Secretary,
Department of Defense
(Army & Air Force Exchange Service),
Agency.
Appeal No. 0120133257
Agency No. AAFES12.099
DECISION
Complainant filed an appeal with this Commission from the Agency's final decision dated November 10, 2012, dismissing a formal 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
During the period at issue, Complainant worked as a Cashier at the Agency's Mountain Home Air Force Base in Idaho.
On September 21, 2012, Complainant filed a formal complaint alleging that the Agency subjected her to discrimination on the bases of disability and in reprisal for prior protected EEO activity.
In its November 10, 2012 final decision, the Agency dismissed the formal complaint on the grounds that it was untimely filed. The Agency reasoned that Complainant received the Notice of Right to File a Discrimination Complaint on June 27, 2012, but did not file her formal complaint until September 21, 2012, outside of the applicable time period.
The Agency also dismissed Complainant's complaint on the alternate grounds of failure to cooperate. Specifically, the Agency stated "by letter dated October 11, 2012, [Complainant was] asked to explain why [she] didn't file [her] complaint within fifteen days after [she] received [her] Notice of Right to File." The Agency noted that it did not receive a response from Complainant.
The instant appeal followed.
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R. � 1614.106(b) requires the filing of a written complaint with an appropriate agency official within fifteen (15) calendar days after the date of receipt of the notice of the right to file a formal complaint.
29 C.F.R. � 1614.107(a)(2) provides that the agency shall dismiss a complaint that fails to comply with the applicable time limits contained in �� 1614.105, 1614.106, and 1614.204(c), unless the agency extends the time limits in accordance with � 1614.604(c).
The record in this case indicates that Complainant received a notice of the right to file a formal discrimination complaint on June 27, 2012. The notice informed Complainant that she had fifteen days from the date of receipt of the notice in which to file a formal complaint. The record further reflects that Complainant did not file a formal complaint within fifteen days of her receipt of this notice but, instead filed the formal complaint on September 21, 2012.
We note that on appeal, Complainant states that "[They] lost my letter so [they are] dismissing." To the extent Complainant is alleging that she filed her formal complaint with the Agency prior to September 21, 2012, the record is devoid of any evidence supporting this assertion. In addition, we note that Complainant does not provide any details regarding her assertion that she initially filed her formal complaint, prior to September 2012, such as the date she filed, by what method (fax, mail, email etc) etc.1 We find that Complainant has failed to present adequate justification, pursuant to 29 C.F.R. � 1614.604(c) for extending the filing period.
Accordingly, we AFFIRM the Agency's final decision dismissing Complainant's formal complaint for the reason stated herein.2
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
December 6, 2013
Date
1 We note that the Agency, in opposition to Complainant's appeal, asserts that there is no record of it previously receiving a formal complaint from Complainant.
2 Because we affirm the Agency's dismissal for the reasons stated herein, we need not address the Agency's alternate grounds for dismissal.
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012013-3257
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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