01a54748
12-01-2005
Gladys M. Kornegay, Complainant, v. Mike Leavitt, Secretary, Department of Health and Human Services, Agency.
Gladys M. Kornegay v. Department of Health and Human Services
01A54748
December 1, 2005
.
Gladys M. Kornegay,
Complainant,
v.
Mike Leavitt,
Secretary,
Department of Health and Human Services,
Agency.
Appeal No. 01A54748
Agency No. OSH00304
Hearing No. 100-2004-00710X
DISMISSAL OF APPEAL
On July 15, 2003, complainant contacted an EEO counselor and filed a
formal EEO complaint on December 2, 2003. In her complaint, complainant
alleged that the agency discriminated against her on the basis of
disability in violation of the Section 501 of the Rehabilitation
Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq.
Complainant alleged that her supervisor harassed her by my making false
statements on her Workers Compensation form, by stating that she was
not aware of complainant's back problems, and by delaying her receipt
of medical treatment.
At the conclusion of the investigation, complainant received a copy
of the investigative report and requested a hearing before an EEOC
Administrative Judge (AJ). The AJ issued a decision without a hearing
dismissing her disparate treatment claim procedurally and finding no
discrimination or harassment on the basis of disability. Specifically,
the AJ dismissed the disparate treatment because the allegation was a
collateral attack on the Workers' Compensation process. The AJ further
found that complainant was not an individual with a disability. The AJ
found, assuming, arguendo, that she was an individual with a disability,
she failed to establish a genuine issue of material fact that the alleged
unwelcome conduct was sufficiently severe or pervasive as to create an
abusive work environment.
The order entering judgment was issued on February 23, 2005, and the
AJ certified that he sent it to complainant and her representative at
their addresses of record no later than February 24, 2005. The agency
failed to issue a decision within 40 days. As a result, because of the
agency's inaction, the AJ's decision became the agency's final order by
operation of law. 29 C.F.R. � 1614.109(i).
The Commission's regulations require that appeals to the Commission
must be filed within 30 days of receipt of the agency's dismissal, final
action, or decision. 29 C.F.R. � 1614.402(a). Presuming that the agency,
complainant and her representative received the order within five days of
February 24, 2005, the latest date the decision may have been transmitted,
complainant's 30-day period for filing an appeal of the AJ's decision
began on Sunday, April 10, 2005. This required the extension of the
applicable filing period to the next business day, April 11, 2004.
Therefore, in order to be considered timely, complainant had to file her
appeal no later than May 11, 2005. Complainant filed her appeal on June
13, 2005.
In the document submitted to the Commission on June 13, 2005, complainant
contends that neither she nor her representative received the AJ's
decision and requested to be advised on how to file an appeal.
Here, we find that complainant's explanation as to why her appeal was
untimely is not credible. Specifically, it is inconsistent with the
AJ's documented certification that he mailed his decision no later than
February 24, 2005, to the addresses of record of the complainant and her
representative. Here, complainant has not offered adequate justification
for an extension of the applicable time limit for filing her appeal.
Accordingly, complainant's June 13, 2005, 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:
December 1, 2005
______________________________ __________________
Carlton M. Hadden, Director Date
Office of Federal Operations