0120102324
09-07-2010
Ronesha Buttler,1 Complainant, v. Mary L. Schapiro, Chairman, Securities and Exchange Commission, Agency.
Ronesha Buttler,1
Complainant,
v.
Mary L. Schapiro,
Chairman,
Securities and Exchange Commission,
Agency.
Appeal No. 0120102324
Agency No. 02-10-10
DECISION
Complainant filed a timely appeal with this Commission from the Agency's decision dated April 23, 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. For the following reasons, the Commission AFFIRMS the Agency's final decision.
ISSUE PRESENTED
Whether the Agency properly dismissed the complaint on the grounds that Complainant failed to timely file her formal complaint.
BACKGROUND
The record reflects that Complainant initiated contact with an EEO Counselor in December 2009. When the counseling process did not result in the resolution of the matter, Complainant was issued a Notice of Right to File a Discrimination Complaint informing her of her right to file a formal complaint within 15 calendar days of receiving the notice. The notice indicated that a complaint needed to be mailed, received by facsimile, or personally delivered to the Agency's Office of Equal Employment Opportunity or the Office of the Chairman, and addresses were provided for both offices. Complainant acknowledged receiving the notice on January 25, 2010.
On February 4, 2010, Complainant's representative submitted a formal complaint via facsimile to the Social Security Administration's Office of Civil Rights alleging that the Agency subjected her to discrimination on the bases of race (African American) and in reprisal for prior protected EEO activity arising under Title VII in connection with changes in her work assignments, conditions, and duties and denial of awards. On March 26, 2010, the representative informed the Agency by letter that a "clerical error" had occurred, and the formal complaint was mistakenly transmitted to a different agency. The representative argued that the complaint was nevertheless timely filed and attached a copy of the formal complaint.
The Agency dismissed the complaint on the grounds that Complainant failed to file her formal complaint within applicable time limits.
CONTENTIONS ON APPEAL
On appeal, through her representative, Complainant argues that the Agency erred in dismissing her complaint. She argues that her complaint was timely because she attempted to file it on February 4, 2010, and she has vigorously pursued her EEO complaint. She further argues that the representative's standard practice is to file formal complaints by mail and facsimile, and the Agency failed to establish that it did not receive a timely copy of her formal complaint by mail. In response, the Agency urges the Commission to affirm its final decision.
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.
Upon review, the Commission finds that Complainant's complaint was properly dismissed pursuant to 29 C.F.R. � 1614.107(a)(2), due to the untimely filing of her formal complaint. The record reflects that Complainant received the notice of right to file a formal complaint on January 25, 2010. Although the notice indicated that Complainant had to file a formal complaint within fifteen (15) calendar days of its receipt, Complainant did not file her complaint with the Agency until March 26, 2010, which is well beyond the limitation period.
On appeal, Complainant has not offered adequate justification to warrant an extension of the time limit for filing the complaint. The Commission has previously held that attempting to file a formal complaint with the wrong agency when properly informed of the correct filing address does not toll the filing limitation period. Hawkins v. Corp. for Nat'l and Cmty. Serv., EEOC Appeal No. 0120092169 (Sept. 15, 2009), request to reconsider denied, EEOC Request No. 0520100019 (Nov. 6, 2009). Although Complainant argues that the Agency failed to establish that it did not receive a mailed copy of her complaint, there is no evidence in the record, i.e., a postmarked mail receipt, that Complainant or her representative ever mailed a copy of her complaint to the Agency in a timely manner. Furthermore, the February 4, 2010 cover sheet that accompanied Complainant's facsimile specifically stated that a "hard copy" of the document "will not follow."
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
____9/7/10______________
Date
1 The Commission notes that Complainant's cover sheet and Notice of Appeal list her name as "Ronesha Buttler," but several documents in the record list her name as "Ronesha Butler."
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2
0120102324
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
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