0120130388
03-13-2013
Jennie Jacks, Complainant, v. Ray Mabus, Secretary, Department of the Navy, Agency.
Jennie Jacks,
Complainant,
v.
Ray Mabus,
Secretary,
Department of the Navy,
Agency.
Appeal No. 0120130388
Agency No. 12-00052-02352
DECISION
Complainant filed a timely appeal with this Commission from the Agency's decision dated October 19, 2012, dismissing her complaint of unlawful employment discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq., Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
BACKGROUND
During the period at issue, Complainant worked as a Financial Management Analyst, GS-12, at an Agency facility in Washington, D.C.
On September 14, 2012, Complainant filed a formal EEO complaint, claiming that the Agency discriminated against her on the bases of race (African American), color ("light-skinned"), and age (over 40) when she was subjected to a hostile work environment culminating in her termination from employment on August 3, 2012.
On October 19, 2012, the Agency issued a final decision dismissing her complaint, pursuant to 29 C.F.R. 1614.107(a)(2), as untimely filed. 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 establishes that Complainant received the Notice of right to file by certified mail on August 21, 2012. The Notice indicated that Complainant had to file a formal complaint within fifteen calendar days of its receipt. In this case, the fifteen-day period expired on September 5, 2012.
Complainant filed a formal EEO complaint with the Agency by mail, signed and dated by her on "14 Sept. 2012". However, there is nothing in the record indicating that Complainant actually filed her formal complaint on that date. While the date of filing can be established by a postmark, the record in this case does not contain the envelope accompanying the formal complaint. The Agency asserts that it received the complaint on September 25, 2012. EEOC regulations provide that when a formal complaint is transmitted without a legible postmark, it should be considered as timely filed if it is received within five days after the expiration of the 15-day filing period. 29 C.F.R. � 1614.604(b). The Agency's receipt of the complaint, on September 25, 2012, was well beyond this five-day grace period. Even counting the filing as the date Complainant signed her complaint (September 14, 2012), she was nine days beyond the expiration of the filing period.
On appeal, Complainant has not offered any justification to warrant an extension of the time limit for filing the formal complaint.
Accordingly, the Agency's final decision dismissing Complainant's formal complaint on the grounds that it was untimely filed 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 tends 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
March 13, 2013
__________________
Date
2
0120130388
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120130388