0120091078
01-13-2011
Margaret Buhr, Complainant, v. Janet Napolitano, Secretary, Department of Homeland Security, (Citizenship and Immigration Services), Agency.
Margaret Buhr,
Complainant,
v.
Janet Napolitano,
Secretary,
Department of Homeland Security,
(Citizenship and Immigration Services),
Agency.
Appeal No. 0120091078
Agency No. HS08CIS007381
DECISION
Complainant filed a timely appeal with this Commission from the Agency's
decision dated December 22, 2008, 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. For the following reasons,
we AFFIRM the Agency's decision.
BACKGROUND
At the time of the events relevant to the complaint, Complainant worked
as an Applicant Adjudicator for the Agency in a limited term appointment.
In her complaint, Complainant alleged that the Agency subjected her to
discrimination on the basis of age when:
On June 16, 2008, Complainant learned that she was not selected for the
position of Applications Adjudicator at the Nebraska Service Center,
as advertised under Vacancy Announcement Number FCIP-177028-Nationwide.
ANALYSIS AND FINDINGS
The regulation set forth at 29 C.F.R. � 1614.107(a)(2) states, in
pertinent part, that an agency shall dismiss a complaint which fails to
comply with the applicable time limits contained in 29 C.F.R. � 1614.106,
which, in turn, requires the filing of a formal complaint within fifteen
(15) days of receiving notice of the right to do so.
In the instant case, the record discloses that Complainant received
the notice of right to file a formal complaint on October 28, 2008.
Interoffice Memorandum Re: Notice of Right to File a Complaint
of Discrimination, October 22, 2008, Record on Appeal (ROA),
at 26. Complainant filed her complaint by facsimile transmission
on November 13, 2008. See Agency's Response to Appeal, Exhibit 3
"Individual Complaint of Discrimination", Header. 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 13, 2008, which is one day beyond the limitation
period. On appeal, Complainant has not offered adequate justification
to warrant an extension of the time limit for filing the complaint.
Accordingly, the Agency's final decision dismissing Complainant's
complaint is AFFIRMED.
CONCLUSION
After a careful review of the record, we AFFIRM the Agency's Decision,
dismissing the complaint pursuant to 29 C.F.R. � 1614.107(a)(2).
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
January 13, 2011
__________________
Date
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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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