0120113544
08-21-2013
Nina C. Frye, Complainant, v. Tom J. Vilsack, Secretary, Department of Agriculture (Forest Service), Agency.
Nina C. Frye,
Complainant,
v.
Tom J. Vilsack,
Secretary,
Department of Agriculture
(Forest Service),
Agency.
Appeal No. 0120113544
Agency No. FS-2011-00129
DECISION
Pursuant to 29 C.F.R. � 1614.405(a), the Commission accepts Complainant's appeal from the Agency's June 24, 2011 final decision 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.
On February 17, 2011, Complainant filed a formal complaint alleging that the Agency discriminated against her on the bases of sex (female) and age (65) when:
1. In July 2010, it did not select her for the Visitor Services Assistant position, advertised under vacancy announcement number ADS100-R5CNFTR-00251;
2. On September 25, 2010, it terminated her from her temporary position as a Recreation Technician on the Cleveland National Forest;
3. On unspecified dates, it failed to provide her with a work environment free of harassment; and
4. On unspecified dates, it failed to provide her with a work environment that contained safety equipment.
The Agency dismissed Complainant's complaint pursuant to 29 C.F.R. � 1614.107(a)(2), for the untimely filing of a formal complaint. The Agency found that Complainant's February 17, 2011 formal complaint was untimely filed because, having received the notice on January 30, 2011, her deadline for filing a formal complaint was February 14, 2011.
On appeal,1 Complainant argued that she filed a formal complaint the day after she and the Agency were unable to resolve the matter during mediation. In addition, Complainant asserted that, because of her patience with delays that occurred during pre-complaint processing, she should be afforded the same latitude with regard to the time limit for filing a formal complaint.
In a letter to the Commission dated July 10, 2012, the Agency determined that claim 1 on the basis of sex was subsumed within a pending class complaint, Vercruysse v. U.S. Department of Agriculture, EEOC Hearing No. 550-2011-00548X, and would be held in abeyance pending an AJ's determination on class certification. According to the Commission's case tracking system, the AJ dismissed the class complaint on March 8, 2013 and the class agent did not appeal the dismissal. If the class complaint is dismissed at the certification stage, class members may not proceed unless they have timely filed individual complaints.
Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, Ch. 8, III.C (Nov. 9, 1999).
EEOC regulation 29 C.F.R. � 1614.107(a)(2) provides, 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. EEOC regulation 29 C.F.R. � 1614.106(b) provides that a complaint must be filed within 15 days of receipt of the notice of the right to do so.
EEOC regulation 29 C.F.R. � 1614.604(c) provides that the time limits are subject to waiver, estoppels and equitable tolling.
The record discloses that Complainant received the notice on January 30, 2011, as evidenced by her signature on a certified mail return receipt. The notice indicated that Complainant had to file a formal complaint within 15 calendar days of its receipt, or by February 14, 2011. However, Complainant did not file her formal complaint until February 17, 2011, which is beyond the limitation period. On appeal, Complainant has not offered an adequate justification to warrant an extension of the time limit for filing a formal complaint. Although Complainant argued that she was awaiting the conclusion of mediation before filing a formal complaint, we note that she could have filed a formal complaint within the time limit and subsequently withdrawn it if she and the Agency had resolved the matter during mediation.
Accordingly, we AFFIRM the Agency's final decision dismissing Complainant's complaint.
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
__8/21/13________________
Date
1 Complainant requested that the Commission appoint an attorney to represent her in the instant complaint. We advise Complainant that the Commission does not appoint attorneys to represent complainants during the administrative process.
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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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