01984714
11-01-1999
Mae E. Read, Appellant, v. Janet Reno, Attorney General, Department of Justice, Agency.
Mae E. Read v. Department of Justice
01984714
November 1, 1999
Mae E. Read, )
Appellant, )
)
v. )
) Appeal No. 01984714
Janet Reno, ) Agency No. P-97-9268
Attorney General, )
Department of Justice, )
Agency. )
______________________________)
DECISION
On May 19, 1998, appellant filed a timely appeal with this Commission
from a final agency decision (FAD), dated April 10, 1998, dismissing her
complaint pursuant to 29 C.F.R. �1614.107(b). The Commission accepts the
appellant's appeal in accordance with EEOC Order No. 960, as amended.
Appellant contacted the EEO office on March 27, 1997, regarding
allegations of discrimination based on race and reprisal. Informal
efforts to resolve appellant's concerns were unsuccessful and on April 28,
1997, she was issued a Notice of Right to File Discrimination Complaint
(Notice).
On September 2, 1997, appellant filed a formal complaint, alleging that
she was the victim of unlawful employment discrimination on the bases
of race and reprisal. The agency dismissed the complaint pursuant
to 29 C.F.R. �1614.107(b). The FAD stated that appellant filed her
complaint four months beyond the time limitation. The FAD noted that,
although appellant contends that she did not receive a complaint form,
she was not required to use a specific form but was clearly notified
to file within 15 calendar days. The agency also dismissed some of the
allegations on the alternative grounds of untimely EEO Counselor contact;
noted that appellant did not undergo EEO counseling with regard to two
other allegations; and dismissed a basis that the agency determined that
appellant had raised.
EEOC Regulation 29 C.F.R. �1614.105(a) provides that an aggrieved person
who believes he or she has been discriminated against must consult an
EEO Counselor in order to try to informally resolve the matter before
filing a complaint. EEOC Regulation 29 C.F.R. �1614.106(b) requires
that a complaint be filed within 15 days of receipt of the notice of
right to file. A complaint must contain a signed statement from the
person claiming to be aggrieved or that person's attorney and must be
sufficiently precise to identify the individual, the agency, and the
actions alleged to be discriminatory.
The Commission finds that the agency properly dismissed appellant's
complaint on the grounds that it was untimely filed. On April 28, 1997,
appellant signed a Notice, which explicitly informed her that she had
fifteen calendar days after receipt of the notice to file a complaint.
Moreover, the Notice indicated "[y]our complaint should be filed by May
14, 1997." The complaint was not filed until September 2, 1997. When the
agency requested a reason for the delay, appellant stated that the EEO
Counselor never provided her with the complaint form. This argument
is insufficient to justify an extension of the time period for filing a
timely complaint. See Moody v. USPS, EEOC Request No. 05930991 (December
16, 1993). Appellant has failed to present adequate justification
for extending the limitation period for filing the formal complaint.
Accordingly, the agency's decision dismissing the complaint is AFFIRMED.
Because the Commission affirms the agency's dismissal of appellant's
complaint for the reason addressed above, the Commission finds it
unnecessary to address the agency's determination to dismiss portions
of appellant's complaint on alternative grounds.
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. In the alternative, you may file a
civil action AFTER ONE HUNDRED AND EIGHTY (180) CALENDAR DAYS of the date
you filed your complaint with the agency, or filed your appeal with the
Commission. 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. 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:
11/01/1999
__________________________________
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations