0120122272
10-11-2012
Elfreda Jones, Complainant, v. Shaun Donovan, Secretary, Department of Housing and Urban Development, Agency.
Elfreda Jones,
Complainant,
v.
Shaun Donovan,
Secretary,
Department of Housing and Urban Development,
Agency.
Appeal No. 0120122272
Agency No. HUD-00003-2012
DECISION
Complainant filed a timely appeal with this Commission from the Agency's decision dated
April 9, 2012, dismissing her 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.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as an Accounting Technician at the Agency's facility in Ft. Worth, Texas. Complainant applied for two promotions but was not selected. On October 14, 2011, Complainant contacted the EEO Counselor regarding the non-selections. When the matter could not be resolved informally, Complainant received the Notice of Right to File a formal complaint on November 26, 2011. The record showed that Complainant's Representative1 sent Complainant's formal complaint to the EEOC's Dallas District Office in Dallas, Texas. When the error was determined, Complainant and the Representative submitted the formal complaint to the Agency. On February 24, 2012, Complainant filed a formal complaint alleging that the Agency subjected her to discrimination on the bases of race (Black) and color (dark complexion) when:
1. On October 6, 2011, Complainant received official notification that she had been referred to the selecting officials, but was not selected for the position of Contract Industrial Relations Specialist, advertized under Vacancy Announcement Number H11-MP-526781-MSZ.
2. On August 30, 2011, she received official notification that she had not been selected for the position of Accountant, advertised under Vacancy Announcement Number F11-MP-490268-1MB. Complainant alleged that management selected someone outside of her protected class.
The Agency dismissed the complaint pursuant to 29 C.F.R. � 1614.107(a)(2). The Agency noted that the Notice of Right to File a formal complaint was issued to Complainant on November 13, 2011, which was delivered to Complainant on November 26, 2011. Complainant filed her formal complaint on February 24, 2012, well beyond the 15 day time limit. The Agency noted that it provided Complainant with the correct mailing address for the formal complaint. However, Complainant's Representative filed her formal complaint with the EEOC's Dallas District Office in Dallas, Texas. The Agency found that Complainant filed the formal complaint with the Agency in an untimely manner. As such, the complaint was dismissed.
This appeal followed. On appeal, Complainant's Representative argued that the complaint was timely filed with the Commission's Dallas District Office. Further, the representative argued that the case has valid merits and that Complainant was subjected to disparate treatment. Based on the serious nature of the case, the Representative asks that the Commission "use the rule of law and justice by granting her constitutional right" and approve of Complainant's appeal. He also included documents showing that he contacted the EEOC's Dallas District Office. The Agency requested that the Commission affirm its dismissal.
ANALYSIS AND FINDINGS
The regulation set forth at 29 C.F.R. � 1614.107(a)(2) states, in pertinent part, that an agency shall dismiss a complaint which fails to comply with the applicable time limits contained in 29 C.F.R. � 1614.106, which, in turn, requires the filing of a formal complaint within fifteen (15) days of receiving notice of the right to do so.
The record reflects that the Agency mailed complainant and her representative a Notice of Right to File a Formal Complaint (Notice) on November 13, 2011. Although the Notice indicated that Complainant had to file her formal complaint within fifteen (15) calendar days of its receipt, Complainant did not file his formal complaint dated February 24, 2011, which is beyond the limitation period. The record further indicates that Complainant's representative filed her formal complaint with the Commission rather than the Agency. The issue to be determined is whether mistakenly filing her complaint with the EEOC rather than the Agency constitutes a valid filing.
The record establishes that the Agency provided Complainant with the proper agency address for filing her complaint. 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. U.S. Postal Serv., EEOC Request No. 05930700 (September 10, 1993) (appeal untimely when sent to wrong address despite receipt of proper instructions); Meggitt v. U.S. Postal Serv., EEOC Appeal No. 01A40408 (February 3, 2004) (above principle applied to a formal complaint that was untimely filed). On appeal, the Representative clearly showed that he erred in sending the documents to the EEOC's Dallas District Office. As noted above, the Agency provided Complainant and the Representative with the correct address for the filing of her complaint. On appeal, Complainant and the Representative have not offered adequate justification to warrant an extension of time limit for filing the complaint.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency's final decision dismissing the instant complaint.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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), at 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 (S0610)
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 (Z0610)
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
October 11, 2012
__________________
Date
1 We note that Complainant's Representative indicated on his signature line that he is referred to as "Esq." However, we note that he does not purport to have a law degree or that his is a member of a Bar Association.
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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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