0120080422
06-18-2010
Jeanne F. Lane, Complainant, v. John M. McHugh, Secretary, Department of the Army, Agency.
Jeanne F. Lane,
Complainant,
v.
John M. McHugh,
Secretary,
Department of the Army,
Agency.
Appeal No. 0120080422
Agency No. YM07033
DECISION
Complainant filed a timely appeal with this Commission from the Agency's
final decision (FAD) dated October 11, 2007, 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. and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation
Act), as amended, 29 U.S.C. � 791 et seq.
ISSUE PRESENTED
Whether the Agency properly determined that Complainant's formal complaint
was untimely filed pursuant to 29 C.F.R � 1614.107(a)(2).
BACKGROUND
Complainant, a Quality Assurance Specialist, GS-1910-11, alleged in
her formal complaint, YM-07-0033, that the Agency discriminated against
her on the bases of sex (female), disability (foot injury), age (65),
and in reprisal for prior protected EEO activity under Title VII.
1. On July 1, 2007, she was forced to retire due to management's failure
to respond to her requests for reasonable accommodations;
2. On April 2, 2007, her supervisor informed her that she was a GS-1910,
Packaging Specialist, who cannot perform her job because she is disabled;
and
3. On February 23, 2007, she was given a notice that informed her that
since the Agency could not locate a position for her, she could be
removed from the Federal Government or given the option to retire.
In the instant matter, the Agency dismissed Complainant's formal complaint
for untimely filing. In its FAD, the Agency noted that the Notice of
Right to File a Complaint (Notice) was mailed to Complainant on July 24,
2007 via certified return receipt. The Agency noted that Complainant
received the letter on July 27, 2007. The Agency further noted that
Complainant's formal complaint of discrimination was filed on September 4,
2007. On these grounds, the FAD found that Complainant's complaint was
filed beyond the 15-day time limitation period. Accordingly, the Agency
dismissed the complaint on the grounds that Complainant failed to comply
with the applicable time limits set forth in 29 C.F.R � 1614.107 (a)(2).
CONTENTIONS ON APPEAL
On appeal, Complainant contends that she timely filed her formal
complaint, because her complaint was "embedded" within another
complaint that she had previously filed. Complainant also contends
that the Agency improperly cancelled mediation proceedings. Finally,
Complainant contends that the Agency's "failure to provide legitimate,
nondiscriminatory reasons for its action obviates the need to prove
pretext."
The agency did not submit arguments on appeal.
FINDINGS AND ANALYSIS
EEOC Regulation 29 C.F.R � 1614.107(a)(2) provides that an agency
shall dismiss a complaint that fails to comply with the applicable time
limits contained in 29 C.F.R � 1614.106, which requires the filing of
a formal complaint within fifteen (15) days of receiving the notice of
the right to do so. Where, as here, there is an issue of timeliness,
"[a]n agency always bears the burden of obtaining sufficient information
to support a reasoned determination as to timeliness." Guy, v. Department
of Energy, EEOC Request No. 05930703 (January 4, 1994) (quoting Williams
v. Department of Defense, EEOC Request No. 05920506 (August 25, 1992)).
The Commission finds that the record contains sufficient evidence to
determine that Complainant filed her formal complaint in an untimely
manner. A review of the certified mail return receipt indicates that the
Notice was received at Complainant's residence. Although the exact day
that the Notice was received is unclear, the receipt clearly indicates
that the month of delivery was July, the year was 2007, and the day was
a two-digit numeral beginning with a "2." Record of Investigation (ROI),
at 82. Even if the Notice was received on July 29th, Complainant's
September 4, 2007, filing would still be untimely.
With respect to Complainant's contention that her complaint was timely
because it was "embedded" within another complaint that she previously
filed. We note that Complainant has submitted no tenable evidence in
support of this argument. More importantly, however, we note that to the
extent Complainant is alleging that the claims at issue in her present
complaint are already pending before the agency in another complaint,
her present complaint would be subject to dismissal pursuant to 29
C.F.R. � 1614.107 (a)(1).
With respect to Complainant's assertion that the Agency improperly
cancelled mediation proceedings, we note that Commission policy states
that, "[n]othing said or done during attempts to resolve [a] complaint
through [mediation] can be made the subject of an EEO complaint." EEOC
Management Directive 110 for 29 C.F.R. Part 1614 (EEO-MD-110),
3-3 (November 9, 1999). Also, "an agency decision not to engage in
[mediation] or not to make [mediation] available for a particular case
. . . cannot be made the subject of an EEO complaint." Id.
Finally, with respect to Complainant's assertion that the "Agency failed
to provide legitimate, nondiscriminatory reasons for its action," we note
that this addresses the merits of her claims and is not relevant to the
procedural issue of timeliness that is presently before the Commission.
CONCLUSION
Based on a careful review of the record, the Commission AFFIRMS the
Agency's final decision dismissing Complainant's complaint for failing
to comply with the applicable time limits enumerated under 29 C.F.R �
1614.106(b).
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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 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 (S0408)
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 (Z1008)
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
____6/18/10______________
Date
2
0120080422
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120080422