01A22065
06-03-2002
Danh T. Schenk, Complainant, v. Gordon R. England, Secretary, Department of the Navy, Agency.
Danh T. Schenk v. Department of the Navy
01A22065
June 3, 2002
.
Danh T. Schenk,
Complainant,
v.
Gordon R. England,
Secretary,
Department of the Navy,
Agency.
Appeal No. 01A22065
Agency No. DON-01-62381-024
DECISION
Complainant filed an appeal with this Commission from an agency decision
pertaining to 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. The Commission accepts the appeal
in accordance with 29 C.F.R. � 1614.405.
Complainant contacted the EEO office regarding claims of discriminatory
harassment based on race and national origin. Informal efforts to resolve
complainant's concerns were unsuccessful. Subsequently, on September 11,
2001, complainant filed a formal complaint.
On January 15, 2002, the agency issued a decision dismissing the complaint
on the grounds that it was untimely filed. Specifically, the agency
found that a notice of final interview, informing complainant of her
right to file a formal complaint, was mailed to her and her attorney
representative. Although complainant's notice was returned to the
agency unclaimed, complainant's attorney representative received the
notice on July 5, 2001. According to the agency, the formal complaint
was postmarked September 11, 2001, well beyond the fifteen-day time
limit set forth in the notice.
The regulation set forth at 29 C.F.R. � 1614.605(d) provides, in relevant
part, that when a complainant designates an attorney as a representative,
service of all official correspondence shall be made on the attorney
and the complainant, but time frames for receipt of materials shall be
computed from the time of receipt by the attorney. Morever, at all
times, it is the complainant that is responsible for proceeding with
the complaint. See 29 C.F.R. � 1614.605(e).
The record in the instant case contains a copy of a Domestic Return
Receipt showing that the Notice of Final Interview (hereinafter "Notice")
was sent to the address of record for complainant's attorney and signed
for on July 5, 2001. The Notice indicated that complainant had to
file her formal complaint within fifteen calendar days of receipt of
the Notice. Although the formal complaint is dated July 13, 2001, the
postmark bears the date September 11, 2001. Therefore, we find that
the complaint was filed well beyond the time limitation.
On appeal, complainant's attorney provides a copy of a letter he
wrote to the agency's EEO Director, dated February 4, 2002. In the
letter complainant's attorney explains that when the Notice was issued
complainant was serving aboard a ship that was in Baltimore for repairs.
According to complainant's attorney, the ship did not return to Norfolk
until July 29, 2001 and days later complaint left for Vietnam for a family
emergency. She did not return to the United States until September 2,
2001. Complainant's attorney contends that complainant did not receive
the copy of the Notice sent by the agency and that he sent her one that
was received on July 13, 2001. However, they did not have a chance to
discuss it before she left for Vietnam. Complainant's attorney argues
that the EEO office received a "clear statement of intent" from him on May
23, 2001, that this letter should be accepted as a timely filed complaint.
As noted above, EEOC regulations provide that the time frames for
receipt of materials shall be computed from the time of receipt by
the attorney. Here, complainant's attorney received the Notice on July
5, 2001. Complainant was given fifteen calendar days from July 5, 2001
to file a formal complaint, but she failed to do so. The Commission
is not persuaded by the arguments presented by complainant's attorney,
namely that he was not able to discuss the matter with complaint before
she left for Vietnam and that his May 2001 letter should set forth the
necessary elements of a complaint. Since complainant has not presented
sufficient justification for tolling or extending the time limitation
for filing a complaint, we find that the agency's dismissal was proper.
Accordingly, the agency's decision dismissing the complaint pursuant to
29 C.F.R. � 1614.107(a)(2) is hereby 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
June 3, 2002
__________________
Date