01A44820
12-21-2004
Sandra Smith-Whitaker, Complainant, v. Norman Y. Mineta, Secretary, Department of Transportation, Agency.
Sandra Smith-Whitaker v. Department of Transportation
01A44820
12-21-04
.
Sandra Smith-Whitaker,
Complainant,
v.
Norman Y. Mineta,
Secretary,
Department of Transportation,
Agency.
Appeal No. 01A44820
Agency No. 2-04-2065
DECISION
Upon review, the Commission finds that complainant's complaint was
properly dismissed pursuant to 29 C.F.R. � 1614.107(a)(2), due to the
untimely filing of the formal complaint. The record indicates that
complainant received notice of the right to file a formal complaint on
January 14, 2004.<1> Although the notice stated that complainant had
to file a formal complaint within fifteen (15) calendar days of its
receipt, complainant did not file her formal complaint until April 5,
2004, which was beyond the limitation period.
Complainant did not provide a statement on appeal; however, the record
includes a copy of an e-mail sent by complainant to an agency official.
In the e-mail, dated April 8, 2004, complainant stated:
I came down on Monday, April 5, 2004, and gave you another copy of the
complaint I filed on February 5, 2004. Did you give the copy to the
person that is S-34? I never heard from any one the 1st time I drop[ped]
it off in the yellow envelope.
The agency indicated that it had no record that complainant ever filed a
complaint on February 5, 2004; however, even if she did file a complaint
on that date, we would still find that she filed in an untimely manner,
because February 5, 2004 was 22 days after complainant received notice
of her right to file a formal complaint. Accordingly, the agency's
final decision dismissing complainant's complaint is affirmed.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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), 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 19848,
Washington, D.C. 20036. 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 (S0900)
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 (Z1199)
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
___12-21-04_______________
Date
1A review of the date seems to indicate that
complainant wrote,�7/14/04,� not �1/14/04.� However, because a July 14,
2004 date is inconsistent with the totality of the record, and complainant
has not disputed the fact that she received the document on January 14,
2004, we find it reasonable to conclude that she mistakenly wrote the
date as �7/14/04.�