01a52386
06-28-2005
Debora A. Hawthorne v. Department of the Air Force
01A52386
06-28-05
.
Debora A. Hawthorne,
Complainant,
v.
Michael L. Dominguez,
Acting Secretary,
Department of the Air Force,
Agency.
Appeal No. 01A52386
Agency No. 9D1S05014
DECISION
Complainant filed a timely appeal with this Commission from the
agency's decision dated January 5, 2005, dismissing her complaint of
unlawful employment discrimination in violation of Section 501 of the
Rehabilitation Act of 1973, as amended, 29 U.S.C. � 791 et seq. In her
complaint, complainant alleged that she was subjected to discrimination
on the basis of disability when she was denied a within-grade increase.
The agency issued a Notice of Right to File a Discrimination Complaint
(Notice) on January 8, 2004. Complainant's formal complaint was filed on
December 3, 2004. The agency dismissed complainant's claim for failing
to timely file a formal complaint within fifteen (15) days pursuant to
29 C.F.R. � 1614.107(a)(2).
EEOC Regulation 29 C.F.R. � 1614.106(b) requires an individual to file
a formal complaint within fifteen (15) calendar days after she receives
the notice of the right to file a formal complaint. Within the Notice
the agency advised complainant that if she chose to proceed she must
file her formal complaint within fifteen (15) calendar days of receipt.
Complainant received the Notice on January 10, 2004, and was required
to file her formal complaint by January 25, 2004. However, complainant
filed her formal complaint on December 3, 2004.
The Commission's regulations allow for waiver of time limits under 29
C.F.R. � 1614.604(c). However, on appeal complainant has not proffered
any reason or submitted any evidence to explain why she was unable to
timely file her formal complaint. Accordingly, the agency's decision
dismissing complainant's complaint on the grounds that the claim was
untimely filed was proper and is affirmed.<1>
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
_____06-28-05_____________
Date
1The agency also dismissed complainant's claim for failure to bring
this claim to the attention of the EEO counselor pursuant to 29 C.F.R. �
1614.107(a)(2). However, since the Commission finds that the complainant
clearly failed to timely file her formal complaint, we need not address
whether complainant failed to bring her claim to the attention of the
EEO counselor.