0120162096
09-09-2016
Colleen M.,1 Complainant, v. David S. Ferriero, Archivist of the United States, National Archives and Records Administration, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Colleen M.,1
Complainant,
v.
David S. Ferriero,
Archivist of the United States,
National Archives and Records Administration,
Agency.
Appeal No. 0120162096
Agency No. 1618VAL
DECISION
Complainant filed a timely appeal with this Commission from the Agency's decision dated May 31, 2016, dismissing 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., Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Digital Imaging Clerk at the Agency's facility in Valmeyer, Illinois.
On March 31, 2016, Complainant filed a formal complaint alleging that the Agency subjected her to discrimination on the bases of sex (female), disability, and age. In her formal complaint, however, Complainant defined the issue raised as follows:
February 2015 - new positions in DCU were to be 3 target 4. Asked if I had to apply for my job - was told no. Positions posted in March 2015 - GS-4 with physical ability test (climbing ladders/lifting 25 lbs.) condition.
In its final decision, however, the Agency defined the issues raised in the complaint as follows based on the issues Complainant discussed in EEO counseling: (1) in April 2015, management told her that she could no longer perform the essential functions of her position; and (2) on December 4, 2015, she received a performance rating of "Fully Successful."
The Agency dismissed claim 1 for failure to contact the EEO counselor in a timely manner. It went on to dismiss the entire complaint, pursuant to 29 C.F.R. � 1614.107(a)(2), due to the untimely filing of the formal complaint.
The instant appeal followed without comment.
ANALYSIS AND FINDINGS
The regulation set forth at 29 C.F.R. � 1614.107(a)(2) states, in pertinent part, that an agency shall dismiss a complaint which fails to comply with the applicable time limits contained in 29 C.F.R. � 1614.106, which, in turn, requires the filing of a formal complaint within fifteen (15) days of receiving the notice of the right to do so.
The Agency represents that Complainant received the notice of right to file a formal complaint on March 3, 2016, delivered by UPS to her home address. Complainant does not dispute this representation. Although the notice indicated that Complainant had to file a formal complaint within fifteen (15) calendar days of its receipt, Complainant did not file her formal complaint until March 31, 2016, which is beyond the 15-day limitation period.
On her formal complaint form, Complainant appears to recognize her late filing as she wrote, "Sorry. Barb was out of the office for 2 weeks. I had no fax # or address to get this back." However, the notice of right to file sent by the Agency to Complainant specifically provided her with the address where the formal complaint should be sent. Therefore we find that, neither to the Agency nor on appeal, has Complainant offered any justification to warrant an extension of the time limit for filing the complaint.
Accordingly, the Agency's final decision dismissing Complainant's complaint as untimely filed is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0416)
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 Chap. 9 � VII.B (Aug. 5, 2015). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission. The requests may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. 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 (Z0815)
If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant's Right to File a Civil Action for the specific time limits).
FOR THE COMMISSION:
______________________________ Carlton M. Hadden's signature
Carlton M. Hadden, Director
Office of Federal Operations
September 9, 2016
__________________
Date
1 This case has been randomly assigned a pseudonym which will replace Complainant's name when the decision is published to non-parties and the Commission's website.
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