0120114146
02-09-2012
Jennifer M. Tootle, Complainant, v. Tom J. Vilsack, Secretary, Department of Agriculture, Agency.
Jennifer M. Tootle,
Complainant,
v.
Tom J. Vilsack,
Secretary,
Department of Agriculture,
Agency.
Appeal No. 0120114146
Agency No. FS201100515
DECISION
Complainant filed a timely appeal with this Commission from the Agency's
decision dated September 6, 2011, 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 a Support Services Specialist at the Agency’s facility in New Bern,
North Carolina.
On July 27, 2011, Complainant filed a formal complaint alleging that
the Agency subjected her to discrimination and harassment on the basis
of reprisal for prior protected EEO activity under Title VII of the
Civil Rights Act of 1964 when she was given a letter of instruction,
in May 2011, during a conference call, her subordinate’s reassignment
was discussed and she was humiliated; a subordinate was allowed to
discus Complainant’s personal business’ a coworker threatened and
intimidated her in May 2011; and a subordinate was granted a detail
without Complainant’s input which left her with more work.
The Agency dismissed the complaint, pursuant to 29 C.F.R. §
1614.107(a)(2), due to the untimely filing of the formal complaint.
The instant appeal followed. In her appeal, Complainant states that her
attorney represents her for some things but not for others, and no longer
represents her in the instant matter.
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(b) which, in turn, requires the filing of a formal complaint
within fifteen (15) days of receiving the notice of the right to do so.
The record discloses that Complainant’s attorney received the notice
of right to file a formal complaint on July 6, 2011. Although the notice
indicated that Complainant had to file a formal complaint within fifteen
(15) calendar days of its receipt, Complainant did not file her formal
complaint until July 27, 2011, which is beyond the limitation period.
On appeal, Complainant has not offered adequate justification to
warrant an extension of the time limit for filing the complaint. Where
a Complainant is represented by an attorney the time begins to run from
the date of receipt by the attorney. 29 C.F.R. § 1614.605(d). The
Complainant is at all times responsible for proceeding with the
complaint. The Commission notes that Complainant indicated that the
attorney represented her at mediation on this matter, as well as with
another complaint. There is no indication that the Agency was informed
that the attorney no longer represented Complainant with respect to the
instant formal complaint.
Accordingly, the Agency's final decision dismissing Complainant's
complaint is AFFIRMED.
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
February 9, 2012
__________________
Date
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0120114146
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120114146