Cheryl Magee, Complainant,v.Donna E. Shalala, Secretary, Department of Health and Human Services, Agency.

Equal Employment Opportunity CommissionDec 21, 2000
01996184 (E.E.O.C. Dec. 21, 2000)

01996184

12-21-2000

Cheryl Magee, Complainant, v. Donna E. Shalala, Secretary, Department of Health and Human Services, Agency.


Cheryl Magee v. Department of Health and Human Services

01996184

December 21, 2000

.

Cheryl Magee,

Complainant,

v.

Donna E. Shalala,

Secretary,

Department of Health and Human Services,

Agency.

Appeal No. 01996184

Agency No. IHS-05699

DECISION

Complainant filed a timely appeal with this Commission from an agency's

July 7, 1999 decision to dismiss 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. In her complaint,

complainant alleged that she was subjected to discrimination on the

bases of national origin (Blackfeet Tribe) and in reprisal for prior

EEO activity when she was subjected to a pattern of harassment.<1>

The agency dismissed the complaint for failure to file a timely formal

complaint. Specifically, the agency found that complainant received

notice of the right to file her formal complaint on November 24, 1998,

but failed to file her formal complaint until May 25, 1999. The agency

was not persuaded by complainant's argument that the EEO Counselor told

complainant she could give her formal complaint to the counselor for

filing.

On appeal, complainant admits to receiving the notice of right to file

on November 24, 1998. She argues that she returned her completed formal

complaint form to the EEO Counselor the same day. She contends that

the counselor offered to file the formal complaint for her.

The record contains a copy of complainant's formal complaint. The

complaint form is dated November 24, 1998, but is stamped as received

by the agency June 1, 1999. The record also contains a notarized

statement from complainant's EEO Counselor, claiming �at no time did

I ever offer to or agree to file a formal EEO complaint for anyone,

including [complainant].� Further, the record contains a cover letter

from complainant's attorney, dated May 28, 1999, forwarding a copy of

the complaint form to the agency.

Complainant must file her formal complaint within fifteen (15) days

of receiving notice of the right to do so. See 29 C.F.R. � 1614.106.

Generally, complaints that fail to comply with this time limit must be

dismissed. See 29 C.F.R. � 1614.107(a)(2). Complaints are considered

filed on the date of their postmark. See 29 C.F.R. � 1614.604(b). In the

absence of a legible postmark, complaints are deemed timely if received

within five days of the expiration of the applicable filing period. Id.

Complainant has no evidence that she submitted the complaint form prior

to May 1999. The EEO Counselor disputes the assertion that he agreed to

file the complaint form on complainant's behalf. Complainant admits that

she received the notice on November 24, 1998. The formal complaint form

is stamped as received June 1, 1999, but includes no legible postmark

or other method of indicating the date it was sent to complainant.

Even with an extension of five days from the expiration of the applicable

filing period, complainant's formal complaint was untimely.

CONCLUSION

Accordingly, the agency's dismissal is AFFIRMED.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0900)

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

December 21, 2000

__________________

Date

CERTIFICATE OF MAILING

For timeliness purposes, the Commission will presume that this decision

was received within five (5) calendar days after it was mailed. I certify

that this decision was mailed to complainant, complainant's representative

(if applicable), and the agency on:

__________________

Date

______________________________

1Complainant raised six incidents of harassment occurring from April to

October 1998.