Deloris A. Warren, Complainant,v.Gordon R. England, Secretary, Department of the Navy, Agency.

Equal Employment Opportunity CommissionApr 29, 2004
01A40684_r (E.E.O.C. Apr. 29, 2004)

01A40684_r

04-29-2004

Deloris A. Warren, Complainant, v. Gordon R. England, Secretary, Department of the Navy, Agency.


Deloris A. Warren v. Department of the Navy

01A40684

April 29, 2004

.

Deloris A. Warren,

Complainant,

v.

Gordon R. England,

Secretary,

Department of the Navy,

Agency.

Appeal No. 01A40684

Agency No. 03-62381-014

DECISION

Complainant appeals to the Commission from the agency's October 8, 2003

decision dismissing her complaint for untimely filing of the formal

complaint pursuant to 29 C.F.R. � 1614.107(a)(2). Complainant alleges

discrimination on the bases of race and reprisal when she was harassed

during the period of October 5, 2002 through April 2002.

The record indicates that the agency sent, via certified mail, the

Notice of Right to File (NORF) a formal complaint to complainant and

complainant's attorney, informing complainant that a formal complaint

must be filed within 15 days of receipt of the NORF. The record further

indicates that complainant's attorney received the NORF on February

20, 2003. The agency found that complainant's March 28, 2003 filing of

the formal complaint was beyond the 15-day limitation period.

On appeal, complainant argues a formal appearance was never entered by the

attorney, notifying the agency that she was formally being represented.

Complainant further argues that she was tending to family emergencies

during parts of February and March 2003.

The record contains an email from complainant dated September 18,

2002, notifying the agency that she was represented by an attorney.

Further, complainant lists her attorney's name and address on the

pre-complaint form. Pursuant to 29 C.F.R. � 1614.605(d), if a complainant

is represented, time frames for receipt of materials shall be computed

from the time of receipt by the attorney. Therefore, complainant had

15 days from February 20, 2003, to file her formal complaint. Finally,

complainant on appeal indicates that she learned on January 3, 2003, that

her daughter was in the hospital. Complainant states that on February 25,

2003, she went to London to visit her daughter and on March 6, 2003,

went to North Carolina to ensure the well-being of her grandchildren.

Complainant also states that on March 7, 2003, she was sent to Athens,

Georgia by the agency, and on March 24, 2003, she returned to the Civilian

Service Unit. Although complainant argues she was under �extreme stress�

during the time, she has not shown that she was incapacitated to the

extent that, despite due diligence, she was unable to timely file her

formal complaint.

The agency's decision dismissing complainant's complaint 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

April 29, 2004

__________________

Date