Lorraine M. Haase, Complainant,v.Pete Geren, Secretary, Department of the Army, Agency.

Equal Employment Opportunity CommissionAug 20, 2007
0120071418 (E.E.O.C. Aug. 20, 2007)

0120071418

08-20-2007

Lorraine M. Haase, Complainant, v. Pete Geren, Secretary, Department of the Army, Agency.


Lorraine M. Haase,

Complainant,

v.

Pete Geren,

Secretary,

Department of the Army,

Agency.

Appeal No. 0120071418

Agency No. ARCEHWV06SEP03729

DECISION

Complainant filed a timely appeal with this Commission from the agency's

decision dated December 19, 2006, dismissing her complaint of unlawful

employment discrimination in violation of the Age Discrimination in

Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.

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. In her complaint, complainant

alleged that she was subjected to discrimination on the basis of age

(D.O.B. 07/02/40), when:

(1) she received a letter of termination due to the failure of a

Performance Improvement Plan.

Complainant additionally alleged that she was subjected to discrimination

on the basis of reprisal for prior protected EEO activity [arising under

the ADEA], when:

(2) she was subjected to a hostile work environment since she contacted

the EEO office in March 2006, and her supervisor was changed as a

result.

The record discloses that complainant received the notice of right to file

a formal complaint on October 24, 2006. Although the notice indicated

that complainant had to file a formal complaint within fifteen (15)

calendar days of its receipt, the EEO office did not receive complainant's

formal complaint until November 20, 2006, which is beyond the limitation

period.1 Further, we note that in its decision dismissing the complaint,

the agency also noted that on November 20, 2006, the EEO Manager sent

complainant a letter containing two requests for clarification, noting

that the information needed to be provided within 15 days of complainant's

receipt of the letter. Complainant failed to provide a timely response.

Subsequently, on December 8, 2006, the EEO Manager again sent complainant

a letter containing the same two requests for clarification, noting that

the information needed to be provided within 5 days of receipt of the

letters, and further noting that failure to do so could result in the

dismissal of her complaint, pursuant to 29 C.F.R. Section 1614.107(a)(7).

Complainant again failed to cooperate.

In documents submitted on appeal, complainant asserts that she did not

receive any mail between December 10, 2006, and January 4, 2007, due to

her hospitalization, which we find may explain why she failed to respond

to the EEO Manager's letter dated December 8, 2006. Complainant did

not however, provide any explanation for why her formal complaint was

untimely, or for why she did not respond to the EEO Manager's request

for clarification letter dated November 20, 2006. Complainant simply

states "To dismiss the entire matter in the basis of a technicality

(my replies being untimely) not only adds insult to injury, but makes

a travesty out of this whole sordid affair." The Commission finds

that complainant has not offered adequate justification to warrant an

extension of the time limits in this case. Accordingly, the agency's

final decision dismissing complainant's complaint is affirmed.

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:

______________________________

Carlton M. Hadden, Director

Office of Federal Operations

August 20, 2007

__________________

Date

1 The formal complaint is dated November 4, 2006 (handwritten by

complainant) however, there is nothing in the record to indicate that

complainant actually filed her complaint on that date. In the FAD,

the agency notes that there was no legible postmark on the envelope

containing the complaint, and that therefore, regulations require the

agency to consider the filing as timely when it is received within five

days after the expiration of the 15-day filing period. The FAD noted

that the 15-day filing period would have expired on November 8, 2006,

therefore, the complaint would have needed to be received by November 13,

2006 in order to be considered timely. Complainant has not on appeal,

asserted that her formal complaint was timely filed.

??

??

??

??

2

0120071418

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P. O. Box 19848

Washington, D.C. 20036