0120110449
04-21-2011
Deborah A. Tyler, Complainant, v. Eric H. Holder, Jr., Attorney General, Department of Justice, (Bureau of Alcohol, Tobacco, Firearms & Explosives), Agency.
Deborah A. Tyler,
Complainant,
v.
Eric H. Holder, Jr.,
Attorney General,
Department of Justice,
(Bureau of Alcohol, Tobacco, Firearms & Explosives),
Agency.
Appeal No. 0120110449
Agency No. ATF201000065
DECISION
Complainant filed a timely appeal with this Commission from the Agency's
decision dated August 30, 2010, 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.
Upon review, the Commission finds that Complainant's complaint was
properly dismissed pursuant to 29 C.F.R. � 1614.107(a)(2), due to the
untimely filing of the formal complaint.
BACKGROUND
In her complaint, Complainant, a Program Manager at the Agency's
Headquarters in Washington, DC, alleged that the Agency subjected her to
discrimination on the bases of race (African-American), sex (female),
and reprisal for prior protected EEO activity under Title VII of the
Civil Rights Act of 1964 when: 1) On November 10, 2009, only she and two
other black females were requested to attend a meeting with management to
discuss respecting your supervisor, providing information when requested
by supervisor and communication; and 2) On January 25, 2010, her first
line supervisor pointed her finger and allegedly threatened that she was
going to call security if Complainant did not bring in her file cabinet
key.
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 record discloses that Complainant received the notice of right
to file a formal complaint on February 26, 2010. 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 16, 2010, which is beyond the limitation period.
In her pleadings, Complainant asserts, inter alia, that she was sick
and unable to complete and return her formal complaint in the requisite
fifteen-day timeframe. However, we have consistently held, in cases
involving physical or mental health difficulties, that an extension
is warranted only where an individual is so incapacitated by his/her
condition that s/he is unable to meet the regulatory time limits.
See Davis v. U.S. Postal Serv., EEOC Request No. 05980475 (Aug. 6, 1998);
Crear v. U.S. Postal Serv., EEOC Request No. 05920700 (Oct. 29, 1992).
Complainant has not offered adequate justification to warrant an extension
of the time limit for filing the complaint.
CONCLUSION
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
April 21, 2011
__________________
Date
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0120110449
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
3
0120110449