01981148
11-06-1998
Martha Ivie, Appellant, v. Andrew M. Cuomo, Secretary, Department of Housing and Urban Development, Agency.
Martha Ivie, )
Appellant, )
)
v. ) Appeal No. 01981148
) Agency No. FW-97-48
Andrew M. Cuomo, )
Secretary, )
Department of Housing and )
Urban Development, )
Agency. )
______________________________)
DECISION
On November 15, 1997, appellant filed a timely appeal with this Commission
from a final agency decision ("FAD") received by her on November 5,
1997, pertaining to her complaint of unlawful employment discrimination
in violation of the Age Discrimination in Employment Act of 1967 (ADEA),
as amended, 29 U.S.C. �621 et seq., and �501 of the Rehabilitation Act
of 1973, as amended, 29 U.S.C. �791 et seq. In her complaint, appellant
alleged that she was subjected to discrimination on the bases of age
(DOB 10/20/36), physical disability (limited mobility/stroke), marital
status (married), and in reprisal for prior EEO activity when, for the
period February 1, 1996, to January 31, 1997, she was given a rating of
"fully successful" on Element number 2 of her performance appraisal
rather than a "highly successful".
The agency dismissed appellant's complaint pursuant to EEOC Regulation 29
C.F.R. �1614.107(b), for failure to file a formal complaint in a timely
manner. Specifically, the agency determined that appellant received
notice of her right to file a formal complaint ("formal complaint notice")
on April 25, 1997, but did not file her complaint until June 13, 1997,
beyond the fifteen (15) day limitation period.
On appeal, appellant contends that at all times she followed the advice
of the EEO Counselor, and argues that she was misinformed. However,
appellant did not elaborate as to the advice she received from the EEO
Counselor or how she was misinformed. Appellant also contends that the
EEO Counselor erred by retaining the formal complaint notice for a month
before signing it. In support of this contention, appellant points out
that her signature on the formal complaint notice bears a date of March
25, 1997, while the EEO Counselor's signature bears a date of April
25, 1997.
EEOC Regulation 29 C.F.R. �1614.107(b) provides that an agency
shall dismiss a complaint or portion thereof that fails to comply
with the applicable time limits in �1614.105. EEOC Regulation 29
C.F.R. �1614.105(d), in turn, requires a complainant to file a formal
complaint within fifteen (15) days of his or her receipt of the formal
complaint notice.
In the instant case, the agency contends that appellant received the
formal complaint notice on April 25, 1997, yet appellant's signature
bears a date of March 25, 1997. Regardless of which date appellant
received the formal complaint notice, the record shows that the notice
clearly instructed appellant that she had to file a formal complaint
within fifteen (15) days of its receipt. The record further shows
that appellant did not file a formal complaint until June 13, 1997,
more than fifteen days from either date appellant received the notice.
As appellant did not provide sufficient justification for her delay,
we find that the agency properly dismissed her complaint pursuant to
29 C.F.R. �1614.107(b). Accordingly, the agency's decision to dismiss
appellant's complaint is AFFIRMED for the reasons set forth herein.
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:
November 6, 1998
____________________________
DATE Ronnie Blumenthal, Director
Office of Federal Operations