0120111614
07-18-2014
Complainant, v. Chuck Hagel, Secretary, Department of Defense (Defense Commissary Agency), Agency.
Complainant,
v.
Chuck Hagel,
Secretary,
Department of Defense
(Defense Commissary Agency),
Agency.
Appeal No. 0120111614
Agency No. DECA-00039-2011
DECISION
Pursuant to 29 C.F.R. � 1614.405(a), the Commission accepts Complainant's appeal from the Agency's January 20, 2011 final 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., Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
On January 6, 2011, Complainant filed a formal complaint alleging that the Store Director and the Grocery Manager subjected her to ongoing hostile work environment harassment on the bases of race (Asian), national origin (Philippines), sex (female), disability, age (51), and reprisal for prior protected EEO activity. Complainant listed 19 incidents as evidence in support of her harassment claim.
The Agency dismissed Complainant's complaint pursuant to 29 C.F.R. � 1614.107(a)(2), due to the untimely filing of a formal complaint. The Agency found that Complainant's January 6, 2011 formal complaint was untimely filed because, having received the notice of right to file a formal complaint on December 11, 2010, her deadline for filing a formal complaint was December 27, 2010.
On appeal, Complainant requested that the Commission reverse the Agency's dismissal of her complaint. First, Complainant argued that the EEO Counselor violated 29 C.F.R. Part 1614 by not conducting a 30-day fact finding into her claim. Second, Complainant argued that she emailed the EEO Counselor on December 21, 2010 and January 2, 2011 for an extension of the time limit for filing a formal complaint because her work was very busy due to the holiday season. Third, Complainant argued that she was late in filing a formal complaint because: (a) the EEO Counselor misled her to believe that she was to file a formal complaint with the EEO Counselor regardless of what the notice of right to file stated; (b) the Agency frequently changed her work schedule; and (c) she was under psychiatric care and was still recuperating from an April 17, 2010 surgery. Complainant submitted copies of her email correspondence with the EEO Counselor.
EEOC regulation 29 C.F.R. � 1614.107(a)(2) provides, 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. EEOC regulation 29 C.F.R. � 1614.106(b) provides that a complaint must be filed within 15 days of receipt of the notice of the right to do so.
EEOC regulation 29 C.F.R. � 1614.604(c) provides that the time limits are subject to waiver, estoppel, and equitable tolling.
The record discloses that Complainant received the notice of right to file a formal complaint on December 11, 2010, as evidenced by her signature on a certified mail return receipt. The notice indicated that Complainant had to file a formal complaint within 15 calendar days of its receipt. The 15th calendar day after December 11, 2010 was Sunday, December 26, 2010. When the last day of a time period falls on a Saturday, Sunday, or Federal holiday, the period shall be extended to include the next business day. 29 C.F.R. � 1614.604(d). Thus, Complainant had to file a formal complaint by December 27, 2010. However, Complainant did not file a formal complaint until January 6, 2011, which is beyond the limitation period.
On appeal, Complainant has not offered adequate justification to warrant an extension of the time limit for filing a formal complaint. Regarding Complainant's first argument, the EEO Counselor's Report indicates that the EEO Counselor conducted the requisite limited inquiry into her claim, including interviewing the Store Director and the Grocery Manager. See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at Ch. 2, � VI.A. (Nov. 9, 1999). In addition, we note that the 30-day EEO counseling period (unless extended by agreement of the aggrieved party) is an upper limit and not a minimum requirement.
See 29 C.F.R. � 1614.105(d). Regarding Complainant's second argument, the record contains no evidence that the EEO Counselor granted Complainant's extension requests. Regarding Complainant's third argument, the record contains no evidence that the EEO Counselor instructed her to ignore the 15-day time limit specified in the notice of right to file. In addition, we do not find that changes in Complainant's work schedule excuse her untimely filing.
Finally, we have consistently held, in cases involving physical or mental health difficulties, that an extension is warranted only where an individual is so incapacitated by her condition that she is unable to meet the regulatory time limits. See Zelmer v. U.S. Postal Serv., EEOC Request No. 05890164 (Mar. 8, 1989). Here, the record contains no evidence that Complainant was so incapacitated by her condition between December 11, 2010 and December 27, 2010 that she was unable to meet the 15-day time limit. We note that Complainant appeared to be working during that time, as her December 21, 2010 extension request indicated that work was very busy due to the holiday season.
Accordingly, we AFFIRM the Agency's final decision dismissing Complainant's complaint.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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), at 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 (S0610)
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 (Z0610)
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
___7/18/14_______________
Date
2
0120111614
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120111614