0120102020
06-28-2011
Deborah C. Gray, Complainant, v. Mike Donley, Secretary, Department of the Air Force, Agency.
Deborah C. Gray,
Complainant,
v.
Mike Donley,
Secretary,
Department of the Air Force,
Agency.
Appeal No. 0120102020
Agency No. 9R-1M1-0045
DECISION
Complainant filed an appeal with this Commission from the Agency's
decision dated March 11, 2011, 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.
Upon review, the Commission finds that the Agency properly dismissed
Complainant's complaint pursuant to 29 C.F.R. § 1614.107(a)(2), due to
the untimely filing of the formal complaint.
At the time of the events giving rise to this complaint, Complainant
worked as a Sheet Metal Mechanic at the Agency’s Robins Air Force Base
facility in Warner Robins, Georgia. On February 18, 2011, Complainant
filed a formal complaint alleging that the Agency subjected her to
discrimination on the basis of sex (female) and harassment when the
Agency issued her a reprimand and revoked her excused absence for physical
fitness activities on September 27, 2009.
The record contains a Notice of Final Interview (“notice”), which
informed Complainant that she had to file a formal complaint within
15 calendar days of receipt of the notice. The record also contains a
U.S. Postal Service Domestic Return Receipt, No. 7006 0810 0000 9576 2397,
for certified mail. The receipt indicates that the notice, which also
contained No. 7006 0810 0000 9578 2397, was delivered to Complainant’s
address of record in Macon, Georgia. Someone at Complainant’s address,
who shared the same last name as Complainant, signed the Domestic
Return Receipt. However, the Domestic Return Receipt does not contain
a date of delivery. The Commission has held that receipt of a document
at a complainant’s correct address by a member of a complainant’s
household or family of suitable age and discretion constitutes receipt
by the complainant. See Baunchard v. U.S. Postal Serv., EEOC Request
No. 05920389 (May 29, 1992). The record also contains a U.S. Postal
Service “Track & Confirm” receipt, which indicates that Certified
Mail No. 7006 0810 0000 9576 2397 was delivered on January 30, 2010,
to Macon, Georgia 31216.
Since all three documents, the notice, the Domestic Return Receipt,
and the “Track & Confirm” receipt, refer to the same confirmation
number, it can be inferred from the “Track & Confirm” receipt
that Complainant received the notice on January 30, 2010. As such,
Complainant had until Sunday, February 14, 2010, to file her complaint.
When the 15-day time limitation period expires on a Saturday, Sunday, or
Federal holiday, the period is extended to include the next business day.
See 29 C.F.R. § 1614.604(d). Therefore, Complainant needed to submit
her complaint no later than Tuesday, February 16, 2010 (February 15,
2010 was a federal holiday). The record shows that the formal complaint
was stamp dated as received by the Agency on February 18, 2010, which is
beyond the 15-day time limitation period. There is nothing else in the
record, such as a postmarked envelope or a U.S. Postal Service delivery
confirmation, to indicate the complaint was filed earlier than February
18, 2010. On appeal, Complainant has not offered any justification to
warrant an extension of the time limit for filing the complaint.
CONCLUSION
The Agency’s dismissal is AFFIRMED.
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 (Nov. 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
June 28, 2011
__________________
Date
2
01-2010-2020
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120102020