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