Diana R. Ponte Complainant, Lawrence H. Summers, Secretary, Department of the Treasury, Agency.

Equal Employment Opportunity CommissionMay 16, 2000
01a00899 (E.E.O.C. May. 16, 2000)

01a00899

05-16-2000

Diana R. Ponte Complainant, Lawrence H. Summers, Secretary, Department of the Treasury, Agency.


Diana R. Ponte )

Complainant, )

)

) Appeal No: 01A00899

) Agency No. 99-4332

Lawrence H. Summers, )

Secretary, )

Department of the Treasury, )

Agency. )

)

DECISION

Complainant filed an appeal with this Commission from a final agency

decision (FAD) pertaining to her complaint of unlawful employment

discrimination in violation of Title VII of the Civil Rights Act of 1964,

as amended, 42 U.S.C. � 2000e et seq. of the Civil Rights Act of 1964,

as amended, 42 U.S.C. � 2000e et seq. The agency dismissed the instant

complaint pursuant to Volume 64 Fed. Reg. 37, 644, 37, 656 (1999)(to

be codified and hereinafter cited as 29 C.F.R. � 1614.107(a)(2)),

for failing to timely file a formal complaint. Specifically, the FAD

determined that complainant failed to file her formal complaint within

15 days of receipt of the Notice giving her a right to do so.

Volume 64 Fed. Reg. 37, 644, 37, 656 (1999)(to be codified and hereinafter

cited as 29 C.F.R. � 1614. 106(b)) requires that a complaint be filed

within 15 days of receipt of the notice of the right to file. Volume 64

Fed. Reg. 37,644, 37, 661 (1999) (to be codified and hereinafter referred

to as EEOC Regulation 29 C.F.R. � 1614.604(c)) provides that time limits

are subject to waiver, estoppel, and equitable tolling.

The Commission determines that complainant has not provided sufficient

justification for extending the time limit for the filing of the

formal complaint. The record indicates that complainant received the

agency's notice on August 11, 1999. However, she did not file her formal

complaint until September 2, 1999, beyond the applicable time period

for filing her complaint. Complainant indicated that her complaint was

untimely due to the unexpected death of her nephew on August 17, 1999.

Moreover, on appeal, complainant further indicates that the delay was

attributable, in part, to unsuccessfully attempting to hire an attorney.

However, nothing in the record supports a finding that complainant was

unable to file her formal complaint in a timely manner, i.e., prior to

August 17, 1999. Thus, complainant has provided no basis for waiving

the time limit for the filing of her formal complaint, and the agency's

dismissal of her complaint was proper. Accordingly, the agency's

decision to dismiss complainant's complaint for untimely filing of the

formal complaint is hereby AFFIRMED for the reasons set forth herein.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0300)

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 64

Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred

to as 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 64 Fed. Reg. 37,644, 37,661 (1999) (to be codified and hereinafter

referred to as 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).

COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (S0400)

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:

May 16, 2000

____________________________

Date Carlton M. Hadden, Acting Director

Office of Federal Operations