0120122322
10-18-2012
Kimmeo Christmas, Complainant, v. Arne Duncan, Secretary, Department of Education, Agency.
Kimmeo Christmas,
Complainant,
v.
Arne Duncan,
Secretary,
Department of Education,
Agency.
Appeal No. 0120122322
Hearing No. 570-2007-00244X
Agency Nos. ED-2006-45-00, ED-2007-16-00, ED-2008-05-00
DISMISSAL OF APPEAL
By Notice of Appeal received May 9, 2012, Complainant filed an appeal with this Commission from the Agency's March 5, 2012 final order concerning her EEO 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., and the Equal Pay Act of 1963, as amended,
29 U.S.C. � 206(d) et seq.
On appeal, Complainant stated that she was resubmitting a copy of her appeal mailed on April 11, 2012 because she was told that it was not received. Complainant's appeal included an April 10, 2012 letter in which she acknowledged filing the appeal late and outlined the following reasons why the Commission should accept her late appeal: (1) her daughter signed for the final order on March 7, 2012, but did not make her aware of it until March 8, 2012; (2) she, as an Agency employee, believes in the Agency's mission of affordable education and her daughter had to drop out of college due to the uncertainty surrounding her employment; and (3) she patiently waited for over five years for a decision from the EEOC Administrative Judge and would like the opportunity to exhaust the administrative process.
For our purposes, we will assume that Complainant received the final order on March 8, 2012. A review of the final order reveals that the Agency properly advised Complainant that she had thirty (30) calendar days after receipt of its final order to file her appeal with the Commission. Therefore, in order to be considered timely, Complainant had to file her appeal no later than April 9, 2012.1 We find no evidence that Complainant mailed her appeal to the Commission on or before April 9, 2012. We note that Complainant herself acknowledged that she did not mail her appeal until April 11, 2012. Complainant has not offered an adequate justification for an extension of the applicable time limit for filing her appeal. Accordingly, Complainant's May 9, 2012 appeal is hereby DISMISSED. See 29 C.F.R. � 1614.403(c).
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
___10/18/12_______________
Date
1 Because the 30th day fell on a Saturday, April 7, 2012, the filing period was extended to include the next business day, Monday, April 9, 2009. See 29 C.F.R. � 1614.604(d).
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0120122322
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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