01A42783_r
09-08-2004
Shirley R. Stein, Complainant, v. Norman Y. Mineta, Secretary, Department of Transportation, Agency.
Shirley R. Stein v. Department of Transportation
01A42783
September 8, 2004
.
Shirley R. Stein,
Complainant,
v.
Norman Y. Mineta,
Secretary,
Department of Transportation,
Agency.
Appeal No. 01A42783
Agency No. 5-04-5024
DECISION
Complainant appeals to the Commission from the agency's February 2, 2004
decision dismissing complainant's complaint for untimely filing of the
formal complaint pursuant to 29 C.F.R. � 1614.107(a)(2). Complainant
alleges discrimination on the bases of age and disability when: (1) she
was not selected for an Accounting Technical Grade F (Vacancy Announcement
No. AAC-AMZ-03-150-70168) on or about September 30, 2003; (2) she was
not provided with the same training and work detail opportunities; and
(3) she was denied reasonable accommodation. The agency dismissed her
complaint for untimely filing of the formal complaint finding that the
Notice of Right to File the formal complaint (NORF) was received on
December 24, 2003, yet the complaint was not filed until January 16,
2004, beyond the 15-day limitation period.
The indicates that complainant's attorney of record received the NORF on
December 30, 2003. Despite the certified return mail receipt indicating
the complainant's attorney received the NORF on December 30, 2003,
complainant's attorney argues it was not received until December 31,
2003. We are not persuaded by such argument and will use the date on the
certified return mail receipt as the date of receipt, December 30, 2003.
A review of the NORF reveals that complainant was notified that the
formal complaint must be filed within 15 days of receipt of the NORF.
The record indicates that complainant's complaint was mailed on January
15, 2004, beyond the 15-day limitation period. Complainant has failed
to present adequate justification to warrant extension of the applicable
limitation period.
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
September 8, 2004
__________________
Date