0120071057
03-08-2010
Veronica Simmons, Complainant, v. Eric H. Holder, Jr., Attorney General, Department of Justice, (Federal Bureau of Prisons), Agency.
Veronica Simmons,
Complainant,
v.
Eric H. Holder, Jr.,
Attorney General,
Department of Justice,
(Federal Bureau of Prisons),
Agency.
Appeal No. 0120071057
Agency No. P20060065
DISMISSAL OF APPEAL
By Notice of Appeal postmarked December 13, 2006, complainant filed
an appeal with this Commission from the April 10, 2006 final decision
issued by the agency, concerning her EEO 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.
Complainant filed a complaint dated February 2, 2006, alleging that she
was subjected to discrimination based on race (African American) and sex
(female) when:
1. On March 30, 2005, complainant was removed from her position in the
Inmate Systems Management (ISM) department and placed in custody;
2. From March through July 2005, complainant was subjected to harassment
when she was accused in the presence of inmates and other staff of taking
an hour lunch, she was harassed when she used sick leave, she was called
names and was subject the subject of jokes, she was threatened with
termination, and she was required to work a post alone;
3. On July 4, 2005, complainant was excluded from an award for a
superior program review rating for Inmate Systems Management (ISM) staff.
Complainant was also not presented with a five-year service pin;
4. On July 12, 2005, complainant's request for Leave Without Pay (LWOP)
was denied;
5. Complainant's performance log entries of "exceeds" were lowered after
she had signed the entries and;
6. Complainant was not given the opportunity for selection for a promotion
because of an ongoing investigation (which commenced in March 2005).
On April 10, 2006, the agency issued a final decision dismissing
issues (1) - (5) of complainant's complaint pursuant to 29 C.F.R. �
1614.107(a)(2), for untimely EEO Counselor contact. The agency dismissed
issues (5) and (6) pursuant to 29 C.F.R. � 1614.107(a)(1), for failure
to state a claim.
In her appeal, complainant states that her mail was picked up from her
mailing address by a family member in May or June 2006. A review of
the agency's final decision reveals that the agency properly advised
complainant that she had thirty (30) calendar days after receipt of
its final decision to file her appeal with the Commission. Therefore,
assuming that complainant received the agency's decision at the latest
on June 30, 2006, in order to be considered timely, complainant had to
file her appeal no later than July 31, 2006.1 On appeal, complainant
states that she was a victim of violence on April 23, 2006, while
she was pregnant. The record contains medical evidence showing that
complainant suffered a fractured jaw from a known assailant in April
2006 and underwent surgery which required an overnight hospitalization.
Complainant was released from the hospital following her jaw surgery
on April 26, 2006. The record also includes documentation indicating
that complainant suffered a fetal loss on May 23, 2006. In addition,
complainant provides a June 15, 2006 letter from her physician stating
that the usual postpartum recovery is six weeks and that it is anticipated
that complainant will be able to resume her usual duties as of July
5, 2006. The record also contains a letter from another doctor who
treated complainant for "post-traumatic stress" dated July 24, 2006,
indicating that complainant can return to work as of July 24, 2006.
Upon review, we note that more than five months elapsed between the June
30, 2006, the latest date complainant could have received the agency's
final decision, and the filing of complainant's instant appeal.
We find that complainant has not offered adequate justification
for an extension of the applicable time limit for filing her appeal.
Accordingly, complainant's December 13, 2006 appeal is hereby DISMISSED.
See 29 C.F.R. � 1614.403(c).
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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 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 (S0408)
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 (Z1008)
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
March 8, 2010
__________________
Date
1 Under 29 C.F.R. � 1614.604(b) (Filing and computation of time), the
first day counted shall be the day after the event from which the lime
period begins to run and the last day of the period shall be included,
unless it falls on a Saturday, Sunday or Federal holiday, in which
case the period shall be extended to include the next business day.
Applying this regulation, the 30 day time limit to file the appeal was
extended to Monday July 31, 2006.
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0120071057
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120071057