01980729
10-29-1998
Diane S. Anderson, Appellant, v. F. Whitten Peters, Acting Secretary, Department of the Air Force, Agency.
Diane S. Anderson, )
Appellant, )
)
v. ) Appeal No. 01980729
) Agency No. KHOF97515
F. Whitten Peters, )
Acting Secretary, )
Department of the Air Force, )
Agency. )
)
DECISION
Appellant filed an appeal with this Commission from a final decision of
the agency concerning 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. and Section 501 of the Rehabilitation Act of
1973, as amended, 29 U.S.C. �791 et seq. The final agency decision was
issued on October 3, 1997. The appeal was postmarked November 1, 1997.
Accordingly, the appeal is timely (see 29 C.F.R. �1614.402(a)), and is
accepted in accordance with EEOC Order No. 960, as amended.
On July 14, 1997, appellant initiated contact with an EEO Counselor.
Informal efforts to resolve her concerns were unsuccessful. On August
11, 1997, appellant's attorney received a Notice of Final Interview,
informing appellant that she had fifteen days from the date of its
receipt in which to timely file a formal complaint.
On September 9, 1997, appellant filed a formal complaint, alleging that
she was the victim of unlawful employment discrimination on the bases
of sex, disability, and reprisal.
On October 3, 1997, the agency issued a final decision. Therein, the
agency determined that appellant's formal complaint was comprised of
twenty-three allegations. The agency dismissed appellant's complaint
on the grounds that appellant failed to file a timely complaint.
Specifically, the agency found that appellant received a Notice of Final
Interview on August 11, 1997, and that the date on which appellant filed a
formal complaint was more than fifteen days after receipt of the Notice.
The agency also dismissed eight allegations on the alternative grounds
that appellant failed to initiate contact with an EEO Counselor in a
timely fashion.
On appeal, appellant states that on August 4, 1997, an agency EEO official
contacted her to schedule a final interview; that appellant informed the
EEO official that she needed to submit additional information; and that
the EEO official agreed to mail a copy of the Notice of Final Interview
to appellant after she received the additional information, that had
been sent by fax from appellant. Appellant further states that when she
received the Notice of Final Interview by mail, she noticed that some
"issues had still not been corrected to include the information I had
faxed to [the EEO official]." Appellant argues that because the Notice
did not contain all the information included in the fax transmission of
August 4, 1997, she again faxed information to the EEO official, with a
request that the EEO official contact her to amend the Notice of Final
Interview. Appellant further argues that the EEO official stated that
she would amend the Notice and said something about a "clock ticking."
Appellant stated that she asked the EEO official if the "clock is
ticking for [appellant] to get [the EEO official] this additional
information?;" that the EEO official did not respond to this question;
and that appellant construed her silence as reflecting that she had done
everything that was necessary to do up to that point. Appellant notes
that she made subsequent unsuccessful attempts to secure an amended Notice
of Final Interview from the agency EEO official, and that on September 9,
1997, she was informed by her attorney that the agency indicated that
it intended to dismiss any complaint filed by appellant as untimely.
Appellant concludes by stating that a complaint was filed on that day,
and was thereafter improperly dismissed as untimely filed.
In response, the agency argues that appellant's complaint was untimely
filed, approximately two weeks after the expiration of the fifteen-day
limitation period. The agency further argues that neither appellant
nor her attorney was misled regarding the processing of her complaint.
The agency also states that appellant asserted that extreme duress and
placement on medical leave were contributing factors in her late filing,
and argues that this assertion should be rejected.
The record in this case contains an affidavit from the agency EEO
Counselor who provided EEO counseling to appellant in the instant
complaint. Therein, the EEO Counselor stated that on August 4, 1997,
she contacted appellant to schedule a final interview; that appellant
stated that the EEO Counselor should mail the Notice of Final Interview
to her; and that appellant indicated that she had more information.
The EEO Counselor indicated that she required copies of letters prepared
by appellant, and was informed by appellant that the letters would
be faxed to her. The EEO Counselor stated that she received the fax
transmission from appellant, and discovered "numerous added issues,
which [she] processed and added to her report." The EEO Counselor
further stated that on August 8, 1997, she mailed the Notice of Final
Interview, which was received by appellant's attorney on August 11, 1997.
The EEO Counselor also stated that on August 12, 1997, she received a
telephone call from appellant, who asked her if she had received the
August 4, 1997 fax transmission; that she, the EEO Counselor, assured
appellant that the additional issues were included in the report; and
that appellant demanded that the EEO Counselor mail her another Notice
of Final Interview. The EEO Counselor stated that she explained to
appellant that because the EEO Counselor had included all appellant's
requested issues, another Notice of Final Interview would not be issued.
Finally, the EEO Counselor stated that she had reminded appellant that
"she must file her formal complaint within the time limits indicated in
the final interview letter."
The record also contains another statement by the EEO Counselor,
identified as a "Memorandum For Record" dated August 13, 1997. Therein,
the EEO Counselor stated that on August 12, 1997, she received a call from
appellant, who asked if the EEO Counselor received a fax sent on August
4, 1997. The EEO Counselor stated that she acknowledged receipt of the
fax, and assured appellant that the issues were considered as having
been the subject of EEO counseling, although they were not included
in appellant's Notice of Final Interview. The EEO Counselor further
stated that appellant indicated that this "was not good enough;" that
she demanded another final interview letter; that she was informed
that another Notice of Final Interview would not be issued; and that
she was reminded that the "clock was ticking" regarding the filing of an
EEO complaint. The EEO Counselor also stated that on August 13, 1997,
she left a message on appellant's answering machine and "again reminded
her that her 15 days to file a formal remained in effect."
EEOC Regulation 29 C.F.R. �1614.106(b) requires the filing of a written
complaint with an appropriate agency official within fifteen (15)
calendar days after the date of receipt of the notice of the right to
file a complaint required by 29 C.F.R. �1614.105(d), (e), or (f).
EEOC Regulation 29 C.F.R. �1614.107(b) provides that the agency shall
dismiss a complaint or a portion of a complaint that fails to comply
with the applicable time limits contained in ��1614.105, 1614.106, and
1614.204(c), unless the agency extends the time limits in accordance
with �1614.604(c).
The record in this case indicates that appellant received a Notice of
Final Interview on August 11, 1997, apprising her that she had fifteen
days from the date of its receipt in which to file a formal complaint.
We are unpersuaded by appellant's contention on appeal, wherein she
asserts that the limitation period was extended as a result of the
purported assurances of agency EEO officials that an amended Notice
would be sent to her. Instead, we find the record supports a finding
that an agency EEO official reiterated, in conversations subsequent to
appellant's receipt of the Notice on August 11, 1997, that the fifteen-day
limitation period for timely filing a complaint commenced on the date
of receipt. Appellant has failed to present adequate justification,
pursuant to 29 C.F.R. �1614.604(c) for extending the filing period.
Accordingly, the agency's decision to dismiss appellant's complaint as
untimely was proper and is AFFIRMED.<1>
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. �1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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).
RIGHT TO FILE A CIVIL ACTION (S0993)
It is the position of the Commission that 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.
You should be aware, however, that courts in some jurisdictions have
interpreted the Civil Rights Act of 1991 in a manner suggesting that
a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the
date that you receive this decision. To ensure that your civil action
is considered timely, you are advised to file it WITHIN THIRTY (30)
CALENDAR DAYS from the date that you receive this decision or to consult
an attorney concerning the applicable time period in the jurisdiction
in which your action would be filed. 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 (Z1092)
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:
Oct. 29, 1998
DATE Ronnie Blumenthal, Director
Office of Federal Operations
1 Because we affirm the agency's decision to dismiss appellant's formal
complaint for the reason stated herein, we find it unnecessary to
address the agency's decision to dismiss some of the allegations raised
in appellant's complaint on alternative grounds.