0120101033
06-29-2010
Linda C. Smith, Complainant, v. Janet Napolitano, Secretary, Department of Homeland Security, (Transportation Security Administration), Agency.
Linda C. Smith,
Complainant,
v.
Janet Napolitano,
Secretary,
Department of Homeland Security,
(Transportation Security Administration),
Agency.
Appeal No. 0120101033
Agency No. HS09TSA007195
DECISION
Complainant filed a timely appeal with this Commission from the agency's
final decision dated December 8, 2009, 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 the Age Discrimination in Employment Act of 1967 (ADEA),
as amended, 29 U.S.C. � 621 et seq.
BACKGROUND
During the relevant period, Complainant worked as a Supervisory
Transportation Security Officer at San Jose International Airport. In her
complaint, Complainant alleged that she was subjected to discrimination
on the bases of race (Hispanic1), sex (female), and reprisal for prior
protected EEO activity when: (1) in 2009, a Manager (S1) manipulated
Complainant's Performance Accountability and Standards System (PASS)]
ratings; (2) on January 2, 2009, S1 refused to provide Complainant with
a copy of her PASS ratings; and (3) on December 27, 2007, Complainant
received her "unjustifiably lowered" PASS ratings for 2007.
The Agency dismissed the complaint for failure to timely file an EEO
complaint pursuant to 29 C.F.R. � 1614.107 (a)(2). Specifically, the
Agency found that Complainant received her Notice of Right to File
(NORF) a complaint via the U.S. Postal Service on September 8, 2009,
informing Complainant that she must file her formal complaint within
fifteen calendar days of receipt of the NORF. The Agency also found that
the formal complaint was filed by fax on September 24, 2009, sixteen
days after receiving the NORF. In a memo supporting her to appeal to
this Commission, Complainant contends that on the day she attempted
to fax her formal complaint, she was unaware that the "phone service
to [her] fax machine had been shut off." Further, she states that,
on the same day, she had to work and was therefore unable to "fax or
mail the documents by other means." As a result, Complainant contends
that she had to wait until the next day to fax her formal complaint,
thereby making it one day late.
ANALYSIS AND FINDINGS
The Commission finds that the Agency has supported its determination
of untimeliness. The Agency is able to show that the NORF arrived at
complainant's address on September 8, 2009, and Complainant has never
denied receiving it. Thus, the Commission finds the agency has shown
Complainant received the NORF, and therefore she filed her complaint
one day late. Additionally, the EEO Counselor informed Complainant
that failure to adhere to timelines may result in loss of her rights to
pursue her EEO complaint.
Pursuant to 29 C.F.R. � 1614.604(c), the time limit is subject to
waiver, estoppel, and equitable tolling. Complainant contends that on
the day she attempted to fax her complaint, she was unaware that the
"phone service to [her] fax machine had been shut off." Further, she
contends that she had to "work that day, and was unable to fax or mail
the documents by other means." However, she has not provided any evidence
to support the contention that she attempted to fax her complaint within
the fifteen day statutory timeframe. See Scott v. Dep't of the Navy,
EEOC Appeal No. 0120081364 (April 9, 2008). In the instant case,
the Commission is not persuaded by Complainant's justification for
untimely filing the formal complaint. The Supreme Court has held that
"Strict adherence to the procedural requirements ... [concerning time
limits] is the best guarantee of evenhanded administration of the law."
Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 108 (2002) (citing
Mohasco Corp. v. Silver, 447 U.S. 807, 826 (1980)).
We find that the Agency properly dismissed the complaint for untimely
filing. Accordingly, the Agency's final decision dismissing the 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
June 29, 2010
__________________
Date
1 We note that the Commission recognizes "Hispanic" as national origin
rather than race.
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0120101033
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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