01976711
09-23-1999
Raheemah Norris, Appellant, v. Richard J. Danzig, Secretary, Department of the Navy, Agency.
Raheemah Norris v. Department of the Navy
01976711
September 23, 1999
Raheemah Norris, )
Appellant, )
)
v. ) Appeal No. 01976711
) Agency No. 97-65886-022
Richard J. Danzig, )
Secretary, )
Department of the Navy, )
Agency. )
)
DECISION
Appellant filed an appeal with this Commission from a final decision of
the agency concerning her complaint of unlawful employment discrimination,
in violation of Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. �2000e et seq. The final agency decision was received by
appellant on August 25, 1997. The appeal was postmarked September 1,
1997. Accordingly, the appeal is timely (see 29 C.F.R. �1614.402(a)),
and is accepted in accordance with EEOC Order No. 960, as amended.
ISSUE PRESENTED
The issue on appeal is whether the agency properly dismissed appellant's
complaint for failing to timely file a formal complaint.
BACKGROUND
Appellant contacted an EEO counselor on May 23, 1997, regarding
allegations of discrimination. Specifically, appellant alleged that
she was discriminated against when on May 19, 1997 she was counseled by
her supervisor about (1) leaving the work area without permission; (2)
clocking on work not being performed; (3) disrespectful and insulting
conduct at roll call; and (4) unaccounted time reflected in the Daily
Labor Exception Report. Appellant was advised during her final interview
on June 20, 1997 that informal efforts to resolve her concerns were
unsuccessful. Also on June 20, 1997 appellant received notice of her
right to file a formal complaint of discrimination within fifteen
(15) days of her receipt of said notice. The fifteenth day on which
appellant had to file a formal complaint fell on Saturday, July 5, 1997.
Pursuant to 29 C.F.R. �1614.604, appellant had until Monday, July 7,
1997 to timely file a formal complaint. The record indicates that on
July 14, 1997, appellant filed a formal complaint of discrimination on
the bases of race (black) and sex (female). On August 20, 1997, the
agency issued its final decision (FAD) dismissing appellant's complaint
pursuant to 29 C.F.R. �1614.107(b).
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R. �1614.106(b) requires the filing of a written
complaint with an appropriate agency official within fifteen (15)
calendar days after the date of receipt of the notice of the right
to file a complaint required by 29 C.F.R. �1614.105(d), (e), or (f).
EEOC Regulation 29 C.F.R. �1614.107(b) provides that the agency shall
dismiss a complaint or a portion of a complaint that fails to comply
with the applicable time limits contained in �� 1614.105, 1614.106,
and 1614.204(c), unless the agency extends the time limits in accordance
with �1614.604(c).
On appeal in the instant matter, the EEO Counselor provided an affidavit
dated November 3, 1997, in which she details statements made during
appellant's final interview on June 20, 1997. Therein, the EEO Counselor
indicates that she informed appellant that her immediate supervisor
did not agree to remove a Letter of Counseling issued to appellant.
Appellant was further informed that the Division Director had stated
that he would not interfere with the decision of appellant's supervisor.
The EEO Counselor's affidavit further indicates that she advised appellant
that since appellant had fifteen (15) calendar days in which to file a
formal complaint, she (the Counselor) would contact the Division Director
once more regarding overriding the decision of appellant's supervisor
regarding the Letter of Counseling.
The EEO Counselor indicates that she spoke with the Division Director on
June 23, 1997 who declined to change his decision on the matter. The EEO
Counselor indicates that she was unable to reach appellant regarding the
Division Director's decision. The record reveals that the EEO Counselor
was on leave from Thursday, July 3, 1997 through Monday, July 7, 1997.
In appellant's statement on appeal, she indicates that the EEO Counselor
instructed her to call on Monday, July 7, 1997 since the fifteenth day for
appellant to file a formal complaint fell on Saturday, July 5, 1997.
The record further reveals that when the EEO Counselor returned to
work on Tuesday, July 8, 1997 appellant had left a voice mail message
indicating that she [appellant] was waiting to hear from the Counselor
so that she could file her formal complaint.
Appellant indicates that she was contacted by the EEO Counselor on
Thursday, July 10, 1997 and was advised to meet with the Counselor on
Monday July 14, 1997 at which time, appellant asserts, she filed her
formal complaint. The EEO Counselor indicates that at no time during
her final interview with appellant on June 20, 1997 did she suggest that
the fifteen (15) days for filing a formal complaint would be extended
for any reason. The EEO Counselor asserts that appellant was well aware
of her rights with respect to filing her formal complaint as evidenced
by her signature on the Notice of Right to File issued to appellant on
June 20, 1997.
As discussed above, appellant indicates that she was waiting to
hear from the EEO Counselor prior to filing her formal complaint.
Appellant indicates further that she was prepared to file a formal
complaint during her June 20, 1997 final interview. Appellant contends,
however, that the EEO Counselor insisted that appellant take the fifteen
(15) days to think things over. Upon review, we find that appellant
has failed to provide the Commission with persuasive evidence that the
fifteen day time period had been extended. There is no evidence of
record indicating that appellant could reasonably have believed that
she had more than fifteen days in which to file her formal complaint.
Upon review of the record, we find that appellant's actions with respect
to filing her formal complaint were not reasonable under the circumstances
of the instant case. In that regard, we find that the time for filing
appellant's formal complaint should not be extended pursuant to EEOC
Regulation 29 C.F.R. �1614.604(c).
CONCLUSION
The agency's decision to dismiss appellant's complaint is hereby
AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. �1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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).
RIGHT TO FILE A CIVIL ACTION (S0993)
It is the position of the Commission that 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.
You should be aware, however, that courts in some jurisdictions have
interpreted the Civil Rights Act of 1991 in a manner suggesting that
a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the
date that you receive this decision. To ensure that your civil action
is considered timely, you are advised to file it WITHIN THIRTY (30)
CALENDAR DAYS from the date that you receive this decision or to consult
an attorney concerning the applicable time period in the jurisdiction
in which your action would be filed. In the alternative, you may file a
civil action AFTER ONE HUNDRED AND EIGHTY (180) CALENDAR DAYS of the date
you filed your complaint with the agency, or filed your appeal with the
Commission. 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. Filing a civil
action will terminate the administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z1092)
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:
September 23, 1999
____________________________
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations