01982902
03-19-1999
Lorraine V. Motta, Appellant, v. Robert E. Rubin, Secretary, Department of the Treasury, Agency.
Lorraine V. Motta v. Department of the Treasury
01982902
March 19, 1999
Lorraine V. Motta, )
Appellant, )
)
v. ) Appeal No. 01982902
) Agency No. 982035
Robert E. Rubin, )
Secretary, )
Department of the Treasury, )
Agency. )
)
DECISION
Based on a review of the record, we find that the agency properly
dismissed appellant's complaint, pursuant to EEOC Regulation 29
C.F.R. �1614.107(b), for untimely filing of her formal complaint.
Appellant alleged that she was subjected to discrimination on the basis
of reprisal for EEO activities when:
On August 22, 1997, appellant became ill from exposure to the Port
Director's cigarette smoking, for which she developed an asthmatic
condition;
On September 2, 1997, appellant was not designated as acting Port
Director; and
On October 30, 1997, appellant was denied a performance award for
Fiscal Year 1997.
On October 20, 1997, appellant received a Notice of Right to File a
Discrimination Complaint, which clearly stated that she had 15 calendar
days after receipt of said notice to file a formal complaint. Appellant
filed her complaint on November 5, 1997, sixteen days after receipt of
the notice. In a letter dated January 30, 1998, appellant states that
after she received the notice, she had to call the local counselor four
times for information to complete her response. Specifically, appellant
stated that she did not receive copies of interview statements and also
that there was an error in one of the interviewee's names which she
requested the Counselor to correct. Appellant contends that she mailed
the complaint at 3:00PM on November 4, 1997, but assumes that the post
office did not postmark it until the next day.
On February 12, 1998, the agency issued a final decision dismissing
appellant's complaint for failure to file a formal complaint in a timely
manner. The agency found appellant's justification inadequate for an
extension of the time limits pursuant to 29 C.F.R. �1614.105(a)(2).
We agree.
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 complaint required by 29 C.F.R. �1614.105(d), (e) or (f).
EEOC Regulation 29 C.F.R. �1614.107(b) provides that the agency shall
dismiss a complaint or a portion of 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).
Pursuant to 29 C.F.R. �1614.604(b), a document is deemed timely if
it is delivered in person or postmarked before the expiration of the
applicable filing period, or, in the absence of a legible postmark,
if it is received by mail within five days of the expiration of the
applicable filing period. The record in this case indicates that
appellant received a notice of the right to file a formal discrimination
complaint on October 20, 1997. The notice informed appellant 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 appellant
did not file a formal complaint within fifteen days of his receipt of
this notice but, instead filed the formal complaint on November 5, 1997.
Appellant asserts that she was delayed in filing her formal complaint
because she had to call the EEO counselor four times to get information.
However, we find this reason to be inadequate since the information
requested, i.e., was not information that appellant needed in order to
complete her formal complaint. Therefore, we find that appellant failed
to present adequate justification, pursuant to 29 C.F.R. �1614.604(c),
for extending the filing period. Accordingly, the agency's decision is
hereby AFFIRMED.
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. �1614.604(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 to consult
an attorney concerning the applicable time period in the jurisdiction
in which your action would be filed. In the alternative, you may file a
civil action AFTER ONE HUNDRED AND EIGHTY (180) CALENDAR DAYS of the date
you filed your complaint with the agency, or filed your appeal with the
Commission. 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. 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 19, 1999 Ronnie Blumenthal
DATE Director
Office of Federal Operations