01A21189
03-28-2002
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