0120150038
02-23-2015
Complainant, v. Jacob J. Lew, Secretary, Department of the Treasury (Internal Revenue Service), Agency.
Complainant,
v.
Jacob J. Lew,
Secretary,
Department of the Treasury
(Internal Revenue Service),
Agency.
Appeal No. 0120150038
Agency No. IRS140181F
DECISION
Complainant filed a timely appeal with this Commission from the Agency's decision dated August 27, 2014, dismissing her complaint of unlawful employment discrimination in violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Contact Representative at the Agency's facility in Franklin, Tennessee.
On July 21, 2014, Complainant filed a formal EEO complaint alleging that the Agency subjected her to discrimination on the basis of disability when she was denied reasonable accommodation.
The Agency dismissed the 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 notice of the right to do so.
The Agency states that Complainant received her notice of right to file her formal complaint on March 28, 2014. However, it failed to provide documentation supporting Complainant's receipt of the notice on this date. Nonetheless, Complainant's formal complaint is signed and dated March 29, 2014. So, it is clear that she received the notice by that date.
The Agency contends that Complainant did not file her formal complaint until July 21, 2014, well beyond the 15-day limitation period. The notice of right to file provided to Complainant clearly indicated that Complainant had to file a formal complaint within 15 calendar days of its receipt.
Complainant provides no argument or evidence on appeal to challenge the Agency's reasoning. The record does show that Complainant sent her formal complaint to the Agency by facsimile on July 21, 2014. The fax cover sheet states, "[e]nclosed is a copy of the letter I sent 3/29/2014 to request my right to file a formal complaint." The Agency denies receiving a formal complaint from Complainant prior to the July fax. Complainant has not explained or provided evidence (such as a prior fax sheet or sworn statement) that she had previously mailed or faxed in the formal complaint on March 29, 2014. Complainant also did not explain what prompted her to send in the formal complaint in July 2014. Therefore, we have no basis for concluding that the Agency erred in its determination that Complainant did not file her formal complaint until July 2014, well beyond the 15-day limitation period.
Accordingly, the Agency's final decision dismissing Complainant's complaint is AFFIRMED.
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
February 23, 2015
__________________
Date
2
0120150038
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120150038