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.