0120111706
10-27-2011
Joyce Moxley, Complainant, v. Leon E. Panetta, Secretary, Department of Defense, (National Geospatial-Intelligence Agency), Agency.
Joyce Moxley,
Complainant,
v.
Leon E. Panetta,
Secretary,
Department of Defense,
(National Geospatial-Intelligence Agency),
Agency.
Appeal No. 0120111706
Agency No. NGAE-10-SI14
DECISION
Upon review, the Commission finds that the Agency’s decision dated
January 3, 2011, dismissing Complainant’s complaint due to untimely
filing of a formal complaint is proper pursuant to 29 C.F.R. §�
�1614.107(a)(2). For the following reasons, we AFFIRM the Agency’s
decision.
BACKGROUND
The record indicates that Complainant contacted an EEO Counselor on
November 15, 2009, alleging discrimination based on sex (female) when
in October 2009, she was reassigned and in November 2009 and December
2009, she was subjected to a hostile work environment. Unable to
resolve the matter informally, Complainant and her attorney received
a Notice of Final Interview & Notice to File a Formal Complaint (FIN)
on September 7, 2010. Complaint File (COM) at 62. Complainant did not
file her formal complaint until December 9, 2010, which was beyond the
limitation period. On appeal, Complainant’s attorney argues that he and
Complainant did not receive the FIN in time to file a timely complaint.
Complainant’s March 4, 2011 Appeal Brief.
ANALYSIS AND FINDINGS
The record contains a copy of “USPS – Track & Confirm” reflecting
that the FIN was delivered, via certified, to Complainant’s attorney’s
address on September 7, 2010. COM at 62. The record also indicates
that in the FIN, the attorney was clearly informed of the 15-day time
limit to file Complainant’s complaint. COM at 31. On appeal, the
attorney indicates that at the time of the issuance of the FIN, his
office was in the process of moving offices and the certified mail of
the FIN was signed by a front desk person who had no authorization to
receive any certified mail on his behalf and the FIN was not actually
delivered to him until after the time for filing a formal complaint
had passed. Complainant’s March 4, 2011 Appeal Brief. However,
in his letter dated November 9, 2010, the attorney acknowledged that
his office actually received the FIN earlier that week informing the
15-day time limit to file a formal complaint. COM at 28. On appeal, the
attorney provides no explanation as to why he did not file the complaint
within 15 days after his purported receipt of the FIN on November 9,
2010 (at the latest), and waited until, at the earliest, December 7,
2010 (the written date on the complaint form), to file the complaint.
Furthermore, the Agency, undisputed by the attorney, indicates that the
attorney did not inform the Agency of his change of address during the
relevant time period prior to the issuance of the FIN, i.e., up until he
sent his November 9, 2010 letter with his new address. Agency’s March
29, 2011 Brief at 6. Based on the foregoing, we find that Complainant
fails to offer adequate justification to warrant an extension of the
time limit for filing the complaint.
CONCLUSION
Accordingly, the Agency’s final decision 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 (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
10/27/11
__________________
Date
2
0120111706
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013