01A42536_r
07-20-2004
Annie R. Johnson, Complainant, v. Donald H. Rumsfeld, Secretary, Department of Defense, (Defense Finance and Accounting Service), Agency.
Annie R. Johnson v. Department of Defense (Defense Finance and Accounting
Service)
01A42536
July 20, 2004
.
Annie R. Johnson,
Complainant,
v.
Donald H. Rumsfeld,
Secretary,
Department of Defense,
(Defense Finance and Accounting Service),
Agency.
Appeal No. 01A42536
Agency No. DFAS-IN-MC-04-026
DECISION
Complainant filed an appeal with this Commission from a February 17,
2004 agency decision, dismissing claim (1) of complainant's complaint
pursuant to 29 C.F.R. � 1614.107(a)(2) on the grounds that the formal
complaint was untimely filed. The agency dismissed claim (2) on the
grounds that the claim raised a matter that had not been brought to the
attention of an EEO Counselor.
In her complaint, complainant alleged that she was subjected to
discrimination on the bases of race, age, and reprisal for prior
EEO activity when: (1) she was not selected for the position of a
Supervisory Civilian Pay Specialist, GS-0501-9/11, Vacancy Announcement
No. CH-0004-03; and (2) she was discriminated against on the basis of
reprisal by being harassed for raising questions about the qualification
of the person selected.
Complainant asserts on appeal that she was confused regarding the time
for filing as a result of: representations made to her by a Person A
in Indiana which led her to believe that she had an ongoing complaint
and that it was being investigated; extensions that were requested for
additional time to process her pre-complaint by Counselor A in Ohio; and
the transfer of the processing of her pre-complaint from Ohio to Indiana.
Upon review, the Commission finds that the agency's dismissal of the
complaint was proper because we find the complaint was untimely filed.
The record reveals that complainant received the Notice of Right to File
her formal complaint (Notice) on October 30, 2003. The Notice informed
complainant that she had to file a formal complaint within fifteen (15)
calendar days of its receipt. The record reveals that complainant did
not file her formal complaint until December 29, 2003, which is beyond
the 15-day limitation period. The Commission is not persuaded that
the time for filing should be extended. The Notice clearly set forth
the time limitation period for filing the complaint, signaling that the
informal processing of her claim had ended. Moreover, a November 25, 2003
electronic mail message from an EEO Specialist to complainant informed
complainant that she had received the Notice and that she needed to file
her formal complaint. Despite the electronic message, complainant still
did not file her complaint until more than a month later on December
29, 2003. Although complainant asserts on appeal that a Person A in
the Indiana office confirmed two days after October 30, 2003, that her
complaint was ongoing, complainant also states on appeal that it was she
who informed Person A on October 30, 2003, that her complaint was ongoing.
Because of our disposition, we do not address whether claim (2) was also
properly dismissed on alternative grounds.
Accordingly, the agency's decision dismissing the 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
July 20, 2004
__________________
Date