01A40684_r
04-29-2004
Deloris A. Warren v. Department of the Navy
01A40684
April 29, 2004
.
Deloris A. Warren,
Complainant,
v.
Gordon R. England,
Secretary,
Department of the Navy,
Agency.
Appeal No. 01A40684
Agency No. 03-62381-014
DECISION
Complainant appeals to the Commission from the agency's October 8, 2003
decision dismissing her complaint for untimely filing of the formal
complaint pursuant to 29 C.F.R. � 1614.107(a)(2). Complainant alleges
discrimination on the bases of race and reprisal when she was harassed
during the period of October 5, 2002 through April 2002.
The record indicates that the agency sent, via certified mail, the
Notice of Right to File (NORF) a formal complaint to complainant and
complainant's attorney, informing complainant that a formal complaint
must be filed within 15 days of receipt of the NORF. The record further
indicates that complainant's attorney received the NORF on February
20, 2003. The agency found that complainant's March 28, 2003 filing of
the formal complaint was beyond the 15-day limitation period.
On appeal, complainant argues a formal appearance was never entered by the
attorney, notifying the agency that she was formally being represented.
Complainant further argues that she was tending to family emergencies
during parts of February and March 2003.
The record contains an email from complainant dated September 18,
2002, notifying the agency that she was represented by an attorney.
Further, complainant lists her attorney's name and address on the
pre-complaint form. Pursuant to 29 C.F.R. � 1614.605(d), if a complainant
is represented, time frames for receipt of materials shall be computed
from the time of receipt by the attorney. Therefore, complainant had
15 days from February 20, 2003, to file her formal complaint. Finally,
complainant on appeal indicates that she learned on January 3, 2003, that
her daughter was in the hospital. Complainant states that on February 25,
2003, she went to London to visit her daughter and on March 6, 2003,
went to North Carolina to ensure the well-being of her grandchildren.
Complainant also states that on March 7, 2003, she was sent to Athens,
Georgia by the agency, and on March 24, 2003, she returned to the Civilian
Service Unit. Although complainant argues she was under �extreme stress�
during the time, she has not shown that she was incapacitated to the
extent that, despite due diligence, she was unable to timely file her
formal complaint.
The agency's decision dismissing complainant's complaint is 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
April 29, 2004
__________________
Date