01a03116
07-20-2000
Connie Vinck, Complainant, v. Rodney E. Slater, Secretary, Department of Transportation, Agency.
Connie Vinck v. Department of Transportation
01A03116
July 20, 2000
.
Connie Vinck,
Complainant,
v.
Rodney E. Slater,
Secretary,
Department of Transportation,
Agency.
Appeal No. 01A03116
Agency No. 2992144
DECISION
INTRODUCTION
Complainant filed an appeal with this Commission from a final agency
decision concerning her complaint of unlawful employment discrimination
in violation of Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. � 2000e et seq.<1> The appeal is accepted pursuant to 64
Fed. Reg. 37,644 37,659 (1999) (to be codified at 29 C.F.R. � 1614.405).
For the following reasons, the Commission AFFIRMS the final agency
decision.
ISSUE PRESENTED
The issue presented herein is whether the agency properly dismissed
complainant's formal EEO complaint for failure to file within fifteen
(15) days of receiving the notice of the right to file.
BACKGROUND
Complainant filed a formal complaint on August 23, 1999, alleging
discrimination on the bases of sex (female), religion (Protestant),
and reprisal (prior EEO activity) when she was (1) not promoted to the
position of Program Manager in November of 1998; and (2) allegedly subject
to a hostile work environment from March 1996 through December 1998.
In its final decision, the agency dismissed the complaint pursuant
to 29 C.F.R. � 1614.107(a)(2) for failure to file in a timely manner.
This appeal followed.
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R. � 1614.106(b) requires the filing of a
written complaint with an appropriate agency official within fifteen
(15) calendar days after the date of receipt of the notice of the right
to file a formal complaint.
Volume 64 Fed. Reg. 37,644, 37,656 (1999)(to be codified and hereinafter
cited as 29 C.F.R. � 1614.107(a)(2)) provides that the agency shall
dismiss a complaint or a portion of a complaint that fails to comply
with the applicable time limits contained in � 1614.106, unless the
agency extends the time limits in accordance with � 1614.604(c).
The record in this case indicates that complainant received a notice of
the right to file a formal discrimination complaint on March 23, 1999.
The notice informed complainant that she had fifteen days from the date
of receipt of the notice in which to file a formal complaint. The record
further reflects that complainant did not file a formal complaint within
fifteen days of her receipt of this notice but, instead filed the formal
complaint on August 23, 1999. On appeal, complainant argues that the
time limit should be extended because from December 14, 1998 to June 30,
1999, she was incapacitated from various mental and physical impairments,
and therefore unable to file her formal complaint within the fifteen
(15) day time period. But, as we have held, in cases involving physical
or mental health difficulties, 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 Davis v. United States Postal Service,
EEOC Request No. 05980475 (August 6, 1998); Crear v. United States Postal
Service, EEOC Request No. 05920700 (October 29, 1992). In this case,
complainant has presented no evidence indicating that, notwithstanding
her impairments (which caused her to miss some days from work), she was
unable to file her complaint in a timely manner. Also, assuming that
complainant was so incapacitated that she was unable to file her formal
complaint in a timely manner, we note that she returned to work on July
5, 1999. We also note that she did not file her formal complaint until
August 23, more than fifteen days after returning to work. For those
reasons, we find that an extension in this case is not justified.
CONCLUSION
Based on the foregoing, the Commission holds that the agency's decision
to dismiss complainant's formal EEO complaint pursuant to 29 C.F.R. �
1614.107(a)(2) was appropriate. As such, we hereby AFFIRM the final
agency decision.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0300)
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 64
Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred
to as 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 64 Fed. Reg. 37,644, 37,661 (1999) (to be codified and hereinafter
referred to as 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).
COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (S0400)
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, Acting Director
Office of Federal Operations
July 20, 2000
__________________
Date
1On November 9, 1999, revised regulations governing the EEOC's federal
sector complaint process went into effect. These regulations apply to all
federal sector EEO complaints pending at any stage in the administrative
process. Consequently, the Commission will apply the revised regulations
found at 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.