0120111207
05-12-2011
Sonya N. McDonald, Complainant, v. Kathleen Sebelius, Secretary, Department of Health and Human Services, (Indian Health Service) Agency.
Sonya N. McDonald,
Complainant,
v.
Kathleen Sebelius,
Secretary,
Department of Health and Human Services,
(Indian Health Service)
Agency.
Appeal No. 0120111207
Agency No. HHS-IHS-0065-2010
DISMISSAL OF APPEAL
Complainant filed an appeal with this Commission from the Agency’s
decision, dated November 10, 2010, concerning her complaint of unlawful
employment discrimination. In her complaint, Complainant alleged that
she was subjected to harassment from October 16 to December 31, 2009,
concerning her leave, suspensions, promotion, and sexual harassment.
EEOC Regulation 29 C.F.R. §1614.402 provides that appeals to the
Commission must be filed within 30 calendar days after complainants
receive notice of the Agency’s decision. The regulation further
provides that a document shall be deemed timely if it is received
or postmarked before the expiration of the applicable filing period,
or, in the absence of a legible postmark, if it is received by mail
within five days of the expiration of the applicable filing period.
The record contains UPS Proof of Delivery indicating that the Agency’s
decision was delivered and served to Complainant’s address of the record
on November 11, 2010. Complainant filed the appeal which was received by
unpostmarked mail on December 29, 2010, which was beyond the 30-day time
limit including 5-day extension, described above. The record reveals
that the Agency’s decision explicitly informed Complainant of the time
limits on her right to appeal. On appeal, Complainant merely indicates
without any explanation that she received the Agency’s decision on
November 23, 2010. Upon review, we find that even if Complainant did
receive the Agency’s decision on November 23, 2010, her December 29,
2010 appeal is still one day late, thus, untimely. After a review of the
record, we find that Complainant fails to provide any justification to
invoke waiver or equitable tolling for filing the appeal. Accordingly,
the appeal is DISMISSED as untimely pursuant to § 1614.403(c).
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
5/12/11
__________________
Date
2
0120111207
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013