Maria T. Allison, Complainant,v.Robert M. Gates, Secretary, Department of Defense, (Defense Finance & Accounting Service), Agency.

Equal Employment Opportunity CommissionSep 13, 2007
0120073074 (E.E.O.C. Sep. 13, 2007)

0120073074

09-13-2007

Maria T. Allison, Complainant, v. Robert M. Gates, Secretary, Department of Defense, (Defense Finance & Accounting Service), Agency.


Maria T. Allison,

Complainant,

v.

Robert M. Gates,

Secretary,

Department of Defense,

(Defense Finance & Accounting Service),

Agency.

Appeal No. 0120073074

Agency No. DFAS-IN-GA-07-007

DISMISSAL OF APPEAL

Complainant filed an appeal with this Commission from the agency's

decision, dated May 18, 2007, concerning her complaint of unlawful

employment discrimination. In her complaint, complainant alleged

discrimination based on disability and in reprisal for prior EEO

activity when on October 16, 2006, she was removed from Federal Service.

EEOC Regulation 29 C.F.R. �1614.402 provides that appeals to the

Commission must be filed within 30 calendar days after a complainant

receives notice of the agency's decision.

Complainant admits on appeal that she received the agency's decision

on May 23, 2007. The appeal was postmarked June 25, 2007, which was

beyond the thirty (30) day time limit set by the regulations. The record

reveals that the agency's decision explicitly informed complainant of

the time limits on her right to appeal. On appeal, complainant fails

to submit adequate justification to invoke waiver or equitable tolling

for filing the appeal.

Accordingly, the appeal is DISMISSED as untimely pursuant to �

1614.403(c).1

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

09/13/2007

__________________

Date

1 In response to complainant's appeal, the agency, undisputed by

complainant, contends that the instant appeal is untimely since

complainant's then attorney received the agency's decision on May 21,

2007, and complainant on May 22, 2007. The agency also submits supporting

documents reflecting the foregoing receipts.

??

??

??

??

2

0120073074

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P. O. Box 19848

Washington, D.C. 20036