0120101506
08-11-2010
Pamela C. Braxton, Complainant, v. Ray Mabus, Secretary, Department of the Navy, Agency.
Pamela C. Braxton,
Complainant,
v.
Ray Mabus,
Secretary,
Department of the Navy,
Agency.
Appeal No. 0120101506
Agency No. 090024202762
DECISION
Complainant filed an appeal with this Commission from the Agency's decision dated January 13, 2010, 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 Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq. For the following reasons, the Commission AFFIRMS the Agency's final decision.
BACKGROUND
In her complaint, Complainant alleged that she was subjected to discrimination based on her race (Native American/Black), color (black), and disability (asthmatic/service connected disability) when: On March 6, 2009, Complainant was terminated during her probationary period due to excessive absenteeism.
The Agency issued a final decision on January 13, 2010, dismissing Complainant's complaint pursuant to 29 C.F.R. � 1614.107(a)(2) due to the untimely filing of the EEO complaint. Specifically, the agency stated that Complainant received the notice of right to file on October 20, 2009, and the deadline for filing her complaint was November 4, 2009. The Agency stated Complainant's complaint was postmarked on November 9, 2009, which it noted was 20 days after Complainant's receipt of the notice of right to file.
On appeal, Complainant requested that her case be reconsidered due to extenuating circumstances of unforeseen hardship. Complainant states that during the 15 day period between her receipt of the notice of right to file and the filing deadline, her landlord was in the process of putting her out her apartment; she was waiting for EDD payments; she was working for only $10.25 per hour for 32 hour work weeks; and she was behind on her rent. Complainant also states she was mentally and physically unable to focus given the circumstances at the time. Complainant states prior to the late filing, she has been diligent in adhering to all pertinent deadlines regarding the case.
In response to Complainant's appeal, the Agency argues that the personal hardships cited by Complainant are not sufficient grounds for waiving the time limit for filing a formal complaint. The Agency also argues Complainant did not meet the standard to show that she was so incapacitated that she was unable to timely file her complaint.
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 15 days of receiving the notice of the right to do so.
The record discloses that Complainant received the notice of right to file a formal complaint on October 20, 2009. Complaint file at 18. The notice properly informed Complainant that she had to file a formal complaint within 15 calendar days of its receipt. Id. Complainant did not file her formal complaint until November 9, 2009, which is beyond the limitation period.
On appeal, we find Complainant has not offered adequate justification to warrant an extension of the time limit for filing the complaint. The Commission notes that Complainant asserted that she was under difficulties with her landlord, her work hours, and suffered financial hardships at the time. Moreover, Complainant stated that she was mentally and physically unable to focus at this time. We have consistently held, in cases involving physical or mental health difficulties, that an extension is warranted only where an individual is so incapacitated by her condition that she is unable to meet the regulatory time limits. See Davis v. U.S. Postal Service, EEOC Request No. 05980475 (August 6, 1998); Crear v. U.S. Postal Service, EEOC Request No. 05920700 (October 29, 1992). Complainant has not shown that she could not file her formal complaint in a timely manner.
CONCLUSION
Accordingly, the Agency's final decision dismissing Complainant's complaint is AFFIRMED.
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
August 11, 2010
__________________
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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