Marie Terranova, Complainant,v.Gordon R. England, Secretary, Department of the Navy, Agency.

Equal Employment Opportunity CommissionMar 28, 2002
01A21189 (E.E.O.C. Mar. 28, 2002)

01A21189

03-28-2002

Marie Terranova, Complainant, v. Gordon R. England, Secretary, Department of the Navy, Agency.


Marie Terranova v. Department of the Navy

01A21189

March 28, 2002

.

Marie Terranova,

Complainant,

v.

Gordon R. England,

Secretary,

Department of the Navy,

Agency.

Appeal No. 01A21189

Agency No. 02-00129-001

DECISION

Complainant filed a timely appeal with this Commission from the agency's

decision dated December 12, 2001, 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. In her complaint, complainant

alleged that she was subjected to discrimination on the bases of sex

(female) and in reprisal for prior EEO activity when:

On March 28, 2001 she was given a Letter of Caution and charged Absent

Without Leave for an unauthorized absence on February 27, 2001.

The agency dismissed the complaint as untimely pursuant to the regulation

set forth at 29 C.F.R. � 1614.107(a)(2). Specifically, the agency found

that complainant failed to file her formal complaint within 15 days of

her receipt of the agency's notice of her right to do so. The agency

states and complainant's attorney admits on appeal that complainant

received the agency's notice of right to file a formal complaint on

September 21, 2001. The record indicates, however, that she did not file

her formal complaint until October 19, 2001, more than 15 days from her

receipt of the agency's notice.

EEOC Regulation 29 C.F.R. � 1614.106(b) requires the filing of a

written complaint with an appropriate agency official within fifteen

(15) calendar days after the date of receipt of the notice of the right

to file a formal complaint. The record discloses that complainant

received the right to file a formal complaint on September 21, 2001.

The fifteenth day after complainant received the notice of right to file

was October 6, 2001, which was a Saturday. Pursuant to EEOC Regulation

29 C.F.R. � 1614.604(d), if the last day of the time period falls on

a Saturday, Sunday or Federal holiday, then the period is extended to

the next business day. Here, Monday, October 8, 2001, was a Federal

holiday, therefore, complainant had until Tuesday, October 9, 2001,

to file her formal complaint. Complainant did not, however, file her

complaint until Friday, October 19, 2001.

Complainant has presented no persuasive evidence to warrant an extension

of the applicable time period for filing her complaint. The agency's

decision dismissing complainant's complaint as untimely is hereby AFFIRMED

for the reasons set forth herein.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0701)

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 19848,

Washington, D.C. 20036. 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 (S0900)

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 (Z1199)

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:

______________________________

Carlton M. Hadden, Director

Office of Federal Operations

March 28, 2002

__________________

Date