01a00041
03-27-2001
Kathleen M. Jensen, Complainant, v. Robert B. Pirie, Jr., Secretary, Department of the Navy, Agency.
Kathleen M. Jensen v. Department of the Navy
01A00041
03-27-01
.
Kathleen M. Jensen,
Complainant,
v.
Robert B. Pirie, Jr.,
Secretary,
Department of the Navy,
Agency.
Appeal No. 01A00041
Agency No. DON 99-00210-002
DECISION
Complainant filed an appeal with this Commission from a final decision of
the agency 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. Complainant received the final agency decision
on September 10, 1999. The appeal was postmarked September 29, 1999.
Accordingly, the appeal is timely pursuant to 29 C.F.R. � 1614.402(a),
and is accepted in accordance with 29 C.F.R. � 1614.405.
ISSUE PRESENTED
The issue on appeal is whether the agency properly dismissed complainant's
complaint on the grounds that she failed to timely file a written
complaint upon receiving notice of her right to file.
BACKGROUND
Complainant alleged that she received a Minimally Successful evaluation
rating for the period June 1, 1998 through May 31, 1999 in reprisal
for filing EEO claim #: DON 99-00210-001 in December 1998. The record
indicates that the complainant signed for and received a hand-delivered
copy of her Notice of Final Interview on July 23, 1999. Complainant's
formal complaint was postmarked on August 10, 1999, and was received by
the agency on August 16, 1999.
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
complaint. Complaints are deemed filed when received by an appropriate
agency official, unless postmarked earlier. 29 C.F.R. � 1614.604(b).
EEOC Regulation 29 C.F.R. � 1614.107(a)(2) states that the agency shall
dismiss a complaint that fails to comply with the applicable time limits
contained in 29 C.F.R. �1614.106 unless the agency extends the time
limits in accordance with 29 C.F.R. � 1614.604(c).
Upon review, the Commission finds that complainant's complaint was
properly dismissed pursuant to 29 C.F.R. � 1614.107(a)(2), due to the
untimely filing of the formal complaint. The record discloses that
complainant received the notice of right to file a formal complaint
on July 23, 1999, as indicated by her signature on the Notice of Final
Interview. Although the notice indicated that complainant had to file
a formal complaint within fifteen (15) calendar days of its receipt,
complainant did not file her formal complaint until August 10, 1999.
See 29 C.F.R. �1614.604(d).
CONCLUSION
Complainant has offered no explanation as to why she was late in filing
her complaint. Therefore, the Commission finds that no persuasive
arguments or evidence have been presented to warrant an extension of the
time limit for filing the complaint. Accordingly, the agency's final
decision dismissing complainant's complaint is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0900)
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
___03-27-01_______________
Date