0120072815
01-07-2010
Brenda Shade, Complainant, v. Arne Duncan, Secretary, Department of Education, Agency.
Brenda Shade,
Complainant,
v.
Arne Duncan,
Secretary,
Department of Education,
Agency.
Appeal No. 0120072815
Agency No. ED20056500
DISMISSAL OF APPEAL
Complainant filed an appeal with this Commission from the agency's
decision, dated April 26, 2007, concerning her complaint of unlawful
employment discrimination. In her complaint, complainant, Program
Support Assistant, GS-9, at the agency's Postsecondary Education,
Washington, D.C., alleged discrimination based on race (Black) when
on April 18, 2005, she was not selected for the position of Management
and Program Analyst, GS-343-11, advertised under Vacancy Announcement
Number, OPE-2005-0035. EEOC Regulation 29 C.F.R. �1614.402 provides that
appeals to the Commission must be filed within 30 calendar days after
a complainant receives notice of the agency's decision. The regulation
further provides that a document shall be deemed timely if it is received
or postmarked before the expiration of the applicable filing period,
or, in the absence of a legible postmark, if it is received by mail
within five days of the expiration of the applicable filing period.
29 C.F.R. � 1614.604(b).
The record contains a copy of the personal receipt signed by complainant
indicating that she picked up the final agency decision in person on
April 27, 2007. The appeal was postmarked on May 31, 2007, which was
beyond the thirty (30) day time limit set by the regulations. The record
reveals that the agency's decision explicitly informed complainant of
the time limits on her right to appeal. On appeal, complainant merely
indicates that she received the agency's decision on April 30, 2007, and
does not clarify that she also previously received the same in person.
Nevertheless, even if she were to have received the agency's decision on
April 30, 2007, her appeal is untimely. On appeal, complainant does not
submit any adequate justification to invoke waiver or equitable tolling
for filing the appeal. Accordingly, the appeal is DISMISSED as untimely
pursuant to � 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
1/7/2010
__________________
Date
2
0120072815
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013