Deborah K. Reid, Complainant,v.John M. McHugh, Secretary, Department of the Army, Agency.

Equal Employment Opportunity CommissionJun 17, 2010
0120101428 (E.E.O.C. Jun. 17, 2010)

0120101428

06-17-2010

Deborah K. Reid, Complainant, v. John M. McHugh, Secretary, Department of the Army, Agency.


Deborah K. Reid,

Complainant,

v.

John M. McHugh,

Secretary,

Department of the Army,

Agency.

Appeal No. 0120101428

Agency No. ARCETULSA08FEB00498

DISMISSAL OF APPEAL

By Notice of Appeal postmarked January 5, 2010, Complainant filed

an appeal with this Commission from the October 29, 2009 Agency's

final decision concerning her EEO 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. and Section

501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended,

29 U.S.C. � 791 et seq.

BACKGROUND

On her appeal form, Complainant indicated that she received the Agency's

final decision on November 16, 2009. A review of the final decision

reveals that the Agency properly advised Complainant that she had

thirty (30) calendar days after receipt of its final decision to file

her appeal with the Commission. Therefore, in order to be considered

timely, Complainant had to file her appeal no later than December 16,

2009. The Agency received the appeal on December 22, 2009 and forwarded

the appeal to the Commission on January 5, 2010. The Commission has no

record of receiving an appeal directly from Complainant.

ANALYSIS AND FINDINGS

Therefore, the only issue remaining is whether mistakenly filing the

appeal with the Agency rather than the EEOC constitutes a valid filing.

The record establishes that the Agency provided Complainant with the

proper EEOC address for filing her appeal. The Commission has previously

held that when provided with the proper address, filing at the wrong

address does not constitute a proper filing. See Pacheco v. United

States Postal Service, EEOC Request No. 05930700 (September 10, 1993)

(appeal untimely when sent to wrong address despite receipt of proper

instructions); Meggitt v. United States Postal Service, EEOC Appeal

No. 01A40408 (February 3, 2004)(above principle applied to a formal

complaint that was untimely filed). On appeal, Complainant has not

offered any justification for an extension of the applicable time limit

for filing her appeal. Accordingly, Complainant's January 5, 2010 appeal

is hereby DISMISSED. 29 C.F.R. � 1614.403(c).

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M1208)

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 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 (S0408)

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 (Z1008)

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

June 17, 2010

__________________

Date

2

0120101428

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013

2

0120101428