0120102130
08-25-2010
Sandra Charnetski, Complainant, v. Michael J. Astrue, Commissioner, Social Security Administration, Agency.
Sandra Charnetski,
Complainant,
v.
Michael J. Astrue,
Commissioner,
Social Security Administration,
Agency.
Appeal No. 0120102130
Agency No. OCO-10-0068
DECISION
Complainant filed a timely appeal with this Commission from the Agency's final decision dated March 23, 2010, dismissing 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.
BACKGROUND
During the period at issue, Complainant was employed as a Customer Service Technician at the Agency's Office of Earnings Operations, Customer Service Branch in Wilkes-Barre, Pennsylvania. On February 19, 2010, Complainant filed the instant formal complaint, claiming that she was the victim of unlawful employment discrimination on the basis of age.
In its March 23, 2010 final decision, the Agency dismissed the formal complaint pursuant to 29 C.F.R. � 1614.107(a)(2), on the grounds that it was untimely filed. The Agency stated that the Notice of Right to File a Discrimination Complaint (hereinafter "Notice") was delivered to Complainant and her attorney on January 28, 2010 via Federal Express, but that Complainant did not file the instant formal complaint until February 19, 2010, outside of the applicable 15-day timeframe. The record contains a copy of two Federal Express Tracking detailed results for Tracking No. 869439336255 (addressed to Complainant) and 869439336440 (addressed to Complainant's attorney). Therein, an entry was made indicating that the transmitted document was delivered to Complainant's residence on January 28, 2010; and delivered to the office of Complainant's attorney and was "Signed for by [MS]" on January 28, 2010.
On appeal, Complainant, through her attorney, argues that the formal complaint was timely filed. Specifically, Complainant states that the Agency "notified our office on March 23, 2010 that our Complaint was dismissed as being untimely. We have appealed this decision, as [t]he dates referenced have been clouded by the dates presented by the Social Security Administration in their correspondence and mailings. Interesting, the Social Security Administration's letter from [Lead EEO Specialist] was dated January 26, 2010, but was not even sent via Federal Express until close of business on January 27, 2010. It was received by our office on January 28, 2010, but was not, in any way, sent or forwarded on the date indicated in the letter. At the very least, the Complainant must be given the same consideration and leeway that was clearly afforded to the Social Security Administration in sending the correspondence after the date indicated."
ANALYIS 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, which, in turn, requires the filing of a formal complaint within fifteen (15) days of receiving notice of the right to do so.
The record supports a determination that the office of Complainant's Attorney received the Notice on January 28, 2010. Although the Notice indicated that Complainant had to file a formal complaint within fifteen (15) calendar days of its receipt, Complainant did not file her formal complaint until February 19, 2010, which is beyond the limitation period. On appeal, Complainant has not offered adequate justification to warrant an extension of the time limit for filing the complaint.
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 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
August 25, 2010
__________________
Date
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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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