01997173
04-26-2001
Teresa P. Batuyong, Complainant, v. Donald H. Rumsfeld, Secretary, Department of Defense, (Defense Finance and Accounting Service), Agency.
Teresa P. Batuyong v. Department of Defense
01997173
April 26, 2001
.
Teresa P. Batuyong,
Complainant,
v.
Donald H. Rumsfeld,
Secretary,
Department of Defense,
(Defense Finance and Accounting Service),
Agency.
Appeal No. 01997173
Agency No. DFAS-CL-0000-99-017
DECISION
Complainant filed a timely appeal with this Commission from an agency
decision dismissing her complaint of unlawful employment discrimination
in violation of Title VII of the Civil Rights Act of 1964 (Title VII),
as amended, 42 U.S.C. � 2000e et seq., and the Age Discrimination in
Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
In her complaint, complainant alleged that she was subjected to
discrimination on the bases of race (Asian) and age (d.o.b. 5/29/48) when:
she was not given priority consideration for the secretarial position
in Code A in March 1999;
she was not given priority consideration in April 1999, for the
secretarial position located in Code FMB; and
the Customer Service Unit did not enforce the Priority Placement Program
(PPP) regulations.
The agency dismissed complainant's claims pursuant to EEOC Regulation
29 C.F.R. �1614.107(a)(2) for untimely filing of the formal complaint.
This regulation 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 days of receiving notice of the right to do so.
On appeal, complainant contends that the time limit for filing her formal
complaint should be tolled because her delay in filing was due to her
husband suffering from a severe and prolonged illness for which she
was acting as his primary caretaker. Also, complainant stated she was
dealing with numerous other family and work-related commitments during
this same period. In its response, the agency states that complainant
has not offered evidence of any extenuating circumstances that would
have precluded her from filing a timely formal complaint and asks that
we affirm the dismissal.
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 discloses that
complainant received the notice of right to file a formal complaint on May
12, 1999. Although the notice indicated that complainant had to file a
formal complaint within fifteen calendar days of its receipt, complainant
did not file her formal complaint until July 12, 1999, which is beyond
the limitation period. The Commission notes that while the circumstances
complainant identifies in her appeal were no doubt serious, they do not
rise to the level which would allow for an extension of the time limit for
filing the complaint. See, e.g., Wingett-Neal v. Department of Energy,
EEOC Appeal No. 01975569 (August 31, 1998); Williams v. United States
Postal Service, EEOC Appeal No. 01954300 (January 23, 1996). Accordingly,
the agency's final decision dismissing the complaint is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0900)
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
April 26, 2001
__________________
Date