0120080674
03-13-2008
Bonita L. Primous, Complainant, v. Dirk Kempthorne, Secretary, Department of the Interior, Agency.
Bonita L. Primous,
Complainant,
v.
Dirk Kempthorne,
Secretary,
Department of the Interior,
Agency.
Appeal No. 0120080674
Agency No. BLM-06-0951
DISMISSAL OF APPEAL
A final agency decision (FAD) dated August 7, 2007, dismissed
complainant's 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. A review of the FAD reveals it
properly advised complainant that she had thirty (30) calendar days
after its receipt to file her appeal with the Commission, and gave the
address for doing so.
Complainant did not file an appeal with this Commission. Instead,
she filed her appeal, dated August 14, 2007, or a copy thereof, with
the agency. It was received by the agency on September 7, 2007.
After the agency was informed that the Commission never received an
appeal, by facsimile it forwarded a copy thereof to the Commission on
November 20, 2007. The Commission has found that an appeal is untimely
when it is sent to the wrong address after complainant received explicit
instructions on how and where to file an appeal. See Pacheco v. United
States Postal Service, EEOC Request No. 05930700 (September 10, 1993)
(appeal untimely when sent to wrong address despite receipt of proper
instructions). Accordingly, we do not construe the correspondence
the agency received on September 7, 2007, to be a timely appeal to
the Commission. Rather, the appeal was filed on November 20, 2007,
when it was received by the Commission via facsimile. As the record
shows complainant received the FAD on or before August 14, 2007, we find
that the appeal was filed beyond the 30 calendar day time limit.
Complainant has not offered adequate justification for an extension
of the applicable time limit for filing her appeal. Accordingly,
complainant's November 20, 2007 appeal is hereby dismissed. See 29
C.F.R. � 1614.403(c).
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
March 13, 2008
__________________
Date
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0120080674
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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0120080674