01A30293_r
08-28-2003
Rowena H. Rice, Complainant, v. Tommy G. Thompson, Secretary, Department of Health and Human Services, Agency.
Rowena H. Rice v. Department of Health and Human Services
01A30293
August 28, 2003
.
Rowena H. Rice,
Complainant,
v.
Tommy G. Thompson,
Secretary,
Department of Health and Human Services,
Agency.
Appeal No. 01A30293
Agency No. 02-036-CMS
DECISION
Complainant appeals to the Commission from the agency's September 25, 2002
decision dismissing her complaint. Complainant alleges discrimination
on the basis of age when on May 9, 2002, the agency changed her work
assignments and gave her a new position description which she alleges
is outside her normal assignments. The agency dismissed complainant's
complaint pursuant to 29 C.F.R. � 1614.107(a)(4), for raising the
same matter in a negotiated grievance which permits allegations of
discrimination. The agency also dismissed complainant's complaint
pursuant to 29 C.F.R. � 1614.107(a)(2), for untimely filing of the
formal complaint.
The record indicates that complainant received the Notice of Right to File
(NORF) the formal complaint on August 27, 2002, which informed complainant
that she must file a formal complaint within 15 days of receipt of
the NORF. However, complainant did not file her formal complaint
until September 14, 2002, which is beyond the 15-day limitation period.
Complainant does not present adequate justification to warrant extension
of the applicable limitation period. Since complainant's complaint is
properly dismissed for untimely filing of the formal complaint, the
Commission will not make a determination on the agency's alternative
grounds for dismissal.
The agency's decision dismissing complainant's complaint is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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), 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 19848,
Washington, D.C. 20036. 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 (S0900)
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 (Z1199)
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
August 28, 2003
__________________
Date