0120103231
12-08-2010
Michele L. Rogers, Complainant, v. Janet Napolitano, Secretary, Department of Homeland Security, (Immigration and Customs Enforcement), Agency.
Michele L. Rogers,
Complainant,
v.
Janet Napolitano,
Secretary,
Department of Homeland Security,
(Immigration and Customs Enforcement),
Agency.
Appeal No. 0120103231
Agency No. HS10ICE001241
DECISION
Complainant filed a timely appeal with this Commission from the
Agency's decision dated July 1, 2010, dismissing her complaint of
unlawful employment discrimination in violation of Section 501 of the
Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. �
791 et seq.
BACKGROUND
Complainant contacted the EEO Office regarding her claim of
discrimination. When the matter could not be resolved informally,
Complainant was issued a Notice of Right to File (Notice) her formal
complaint on January 28, 2010. The Notice informed Complainant that
she had 15 days to file her formal complaint. On February 17, 2010,
Complainant filed her formal complaint. In her complaint, Complainant
alleged that the Agency subjected her to discrimination on the basis of
disability (hearing) when:
1. From September 2009, management officials impaired Complainant's
ability to utilize her disability accommodations;
2. On November 13, 2009, Complainant received a lower annual performance
rating for the 2009 fiscal year rating period; and
3. On January 26, 2010, the Unit Chief reprimanded Complainant for
ongoing communication problems between Complainant and her supervisors.
The Agency dismissed the complaint pursuant to 29 C.F.R. � 1614.107(a)(2)
for failing to timely file her formal complaint. The Agency noted
that Complainant received the Notice on January 28, 2010. As such,
to be timely, Complainant was required to file her formal complaint by
February 12, 2010. The Agency's decision indicated that during this
time period, there was inclement weather resulting in the closure of
the Federal Government. However, the Agency found that the Federal
Government was open on both February 12 and 16, 2010. As such, the
Agency found Complainant's formal complaint filed on February 17, 2010,
was in fact untimely. Therefore, the Agency dismissed the complaint.
CONTENTIONS ON APPEAL
Complainant appealed asserting that the Federal Government was closed
and she mailed the formal complaint on the first day it opened following
the inclement weather. The Agency responded by providing information
from the Office of Personnel Management (OPM) regarding the Government's
operation status for the time in question.
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.
Complainant indicated on her formal complaint that she received the
Notice on January 28, 2010. Therefore, to be timely, Complainant
was required to submit the formal complaint by February 12, 2010.
Complainant asserted that the Federal Government was closed on the day
in question. The Commission has reviewed the record including the OPM's
operating status for the Federal Government on the day in question.
Despite Complainant's assertion, we find that the Federal Government
was open on February 12, 2010. In addition, we note that the Federal
Government was also open on February 16, 2010.1 As such, we agree with
the Agency's determination that Complainant's formal complaint filed on
February 17, 2010, was untimely.
CONCLUSION
Accordingly, 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
December 8, 2010
__________________
Date
1 The record indicates that February 15, 2010, was a Federal Holiday.
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0120103231
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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