01981183
11-10-1998
Susan E. Corney, Appellant, v. John H. Dalton, Secretary, Department of the Navy, Agency.
Susan E. Corney v. Department of the Navy
01981183
November 10, 1998
Susan E. Corney, )
Appellant, )
)
v. ) Appeal No. 01981183
) Agency No. 97-67399-005
John H. Dalton, )
Secretary, )
Department of the Navy, )
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 failure to submit a formal complaint in a timely
manner. Appellant alleged that she was subjected to discrimination on
the basis of sex (female) when:
On July 9, 1997, the position of Fiscal Officer, GS-12, was purposely
advertised with an area of consideration that denied appellant the
opportunity to apply or compete for the position; and
On July 23, 1997, the wife of one of the applicants referred for
consideration of the Fiscal Officer position called appellant and
questioned her motives and right to file an EEO complaint, thereby
threatening and intimidating appellant.
On October 21, 1997, the agency issued a final decision dismissing
appellant's complaint for failure to file a formal complaint in a
timely manner. In the alternative, the agency dismissed allegation
(2), pursuant to 29 C.F.R. �1614.107(a), for failure to state a claim.
Specifically, the agency determined that appellant's August 26, 1997
formal complaint was filed more than fifteen (15) days from the date
(August 5, 1997) she received notice of her right to file a formal
complaint, and was, therefore, untimely.
EEOC Regulation 29 C.F.R. �1614.107(b), in relevant part, provides that an
agency shall dismiss a complaint or portion thereof that fails to comply
with the applicable time limits contained in �1614.105. EEOC Regulation
29 C.F.R. �1614.105(d), in turn, provides that a complainant must file
a formal complaint within fifteen (15) days of his or her receipt of
notice of her right to do so.
In the instant case, the record reveals that appellant received notice
of her right to file a formal complaint on August 5, 1997, and that the
notice properly informed her that she had to file a formal complaint
within fifteen (15) days of its receipt. The record further discloses
that appellant did not file her formal complaint until August 26,
1997, beyond the limitation period. To justify the delay in filing
her formal complaint, appellant asserted that she was hospitalized from
August 14 - 16, 1997. However, the Commission has consistently held,
in cases involving physical or mental health difficulties, that a time
extension is warranted only where an individual is so incapacitated by
her condition that she is unable to meet the regulatory time limits.
See Crear v. United States Postal Service, EEOC Request No. 05920700
(October 29, 1992); Weinberger v. Department of the Army, EEOC Request
No. 05920040 (February 21, 1992); Hickman v. Department of the Navy,
EEOC Request No. 05910707 (September 30, 1991); Johnson v. Department of
Health and Human Services, EEOC Request No. 05900873 (October 5, 1990);
and Zelmer v. United States Postal Service, EEOC Request No. 05890164
(March 8, 1989). In the instant case appellant failed to show that she
was incapacitated during the entire filing period such that she could
not have timely filed her complaint. Accordingly, the agency's final
decision dismissing appellant's complaint is AFFIRMED.<1>
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:
Nov. 10, 1998
____________________________
DATE Ronnie Blumenthal, Director
1Since we are affirming the agency's dismissal of appellant's complaint
on the grounds that her formal complaint was untimely, we will not
address the agency's alternative grounds for dismissal of allegation (2),
i.e., that it failed to state a claim.