Veronica Simmons, Complainant,v.Eric H. Holder, Jr., Attorney General, Department of Justice, (Federal Bureau of Prisons), Agency.

Equal Employment Opportunity CommissionMar 8, 2010
0120071057 (E.E.O.C. Mar. 8, 2010)

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