0120152139
10-27-2015
Lula N.,1 Complainant, v. Deborah Lee James, Secretary, Department of the Air Force, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Lula N.,1
Complainant,
v.
Deborah Lee James,
Secretary,
Department of the Air Force,
Agency.
Appeal No. 0120152139
Agency No. 9D1S14026
DECISION
Complainant filed a timely appeal2 with this Commission from the Agency's decision dated February 27, 2015, 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. and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Human Resources Specialist at the Agency's Los Angeles Air Force Base facility, in Los Angeles, California.
Complainant initiated contact with the Space and Missile Systems Center Equal Opportunity office on April 3, 2014 and on April 9, 2014. She alleged that the Agency subjected her to discrimination on the bases of race ("Hispanic"), national origin (Hispanic), color (Brown), and age (51) when, on March 6, 2014, Complainant learned that she was not selected for the position of Supervisory Human Resource Specialist (Recruitment and Placement) GG-0201-13. She also asserted that the Agency's selection was "arbitrary and capricious" and that the responsible management officials "have violated the agency Merit Promotion and Affirmative Employment Plan in the evaluation and selection of their candidate." She cited the merit system principles as her authority under 5 U.S.C. � 2301.
The Agency gave Complainant an "election of forum," which offered her a choice of proceeding to court or to follow the EEO route. She opted to proceed through the EEO process.
The record discloses that the Agency issued Complainant the Notice of Right to File a formal complaint on July 8, 2014. Record, Tab 5. It is undisputed that she received the Notice on July 8, 2014. Although the notice indicated that Complainant had to file a formal complaint within fifteen (15) calendar days of its receipt, Complainant filed her formal complaint on November 3, 2014. The Agency had previously tolled the time for her filing. At the time of filing her complaint, Complainant requested that the filing period be tolled because she was incapacitated and she indicated that her physician's statement would be sent later.
The statement from Complainant's physician acknowledged that Complainant had been released to return to work on October 21, 2014, and the physician did not provide any adequate medical justification justifying her incapacitation. Instead, the physician added that "it has come to [his] attention that [Complainant] was verbally accosted by another employee on 22 October, 2014." The physician stated "situations like this have a severe negative impact on her health and her ability to fully attend to all aspects of her regular business."
The Agency Decision
The Agency dismissed the complaint under 29 C.F.R. 1614.107(a)(2) for failure to timely file her complaint. The Agency found that Complainant filed her complaint 11 days after the additional tolling period. The Agency reasoned that it had already tolled the time once before, between July 8, 2014 and July 21, 2014, which was consistent with the notice received from her physician allowing her to return to work. The Agency concluded that the complaint must be dismissed.
The instant appeal followed.
ANALYSIS AND FINDINGS
The regulation set forth at 29 C.F.R. � 1614.106(b) requires the filing of a written complaint within fifteen (15) calendar days after the date of receipt of the notice of the right to file a formal complaint.
With regard to this complaint, the record discloses that Complainant received the notice of right to file a formal complaint on July 8, 2014.
On appeal, Complainant maintains that she was under a physician's' care as the reason for her untimely filing. The record includes statements from her physician that she was unable to tend to normal business for the period July 21, 2014 through July 28, 2014. After she was released to return to work, her physician placed her on an additional period of incapacitation through September 17, 2014, and again from October 22, 2014 through November 14, 2014.
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 November 3, 2014, which is beyond the limitation period, but sooner than her physician's statement of the duration of her incapacitation.
This is not a situation where Complainant was hospitalized. We find that she has not offered adequate justification to warrant a further extension of the time limit for the filing of the complaint at issue.
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.
CONCLUSION
Accordingly, we AFFIRM the Agency's final decision dismissing Complainant's complaint.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0815)
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 tends 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 Chap. 9 � VII.B (Aug. 5, 2015). 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 (Z0815)
If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant's Right to File a Civil Action for the specific time limits).
FOR THE COMMISSION:
______________________________ Carlton M. Hadden's signature
Carlton M. Hadden, Director
Office of Federal Operations
October 27, 2015
__________________
Date
1 This case has been randomly assigned a pseudonym which will replace Complainant's name when the decision is published to non-parties and the Commission's website.
2 The record shows that Complainant received the decision on April 15, 2015 and filed this appeal within 30 days of her receipt of the Agency's decision.
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