0120141634
10-03-2016
Marni J.,1 Complainant, v. Sally Jewell, Secretary, Department of the Interior (Bureau of Land Management), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Marni J.,1
Complainant,
v.
Sally Jewell,
Secretary,
Department of the Interior
(Bureau of Land Management),
Agency.
Appeal No. 0120141634
Agency No. BLM-10-0351
DECISION
On April 2, 2014, Complainant, through her attorney, filed an appeal with this Commission by fax from the Agency's May 19, 2011, final decision (FAD) concerning her EEO 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. For the reasons set forth below, Complainant's appeal is DISMISSED.
ISSUE PRESENTED
Whether Complainant's appeal was filed with the Commission in an untimely manner?
BACKGROUND
The Agency issued a FAD dated May 19, 2011, which found no discrimination with regard to Complainant's allegations of discrimination. On April 2, 2014, Complainant's attorney, B1, faxed a nineteen (19) page document to the Commission's Office of Federal Operations (OFO). On the cover sheet, B1 wrote, "Please see attached and advise on the status of appeal." The document included: (1) a Notice of Appeal form, dated June 17, 2011,2 (2) the Agency's May 19, 2011, FAD; and (3) a Certificate of Service, dated June 17, 2011, indicating that B1 was providing a copy to the Agency. Upon receipt of the April 2, 2014, fax transmission, OFO docketed this matter as an appeal. The Agency, on July 1, 2014, filed a brief in response asking that we affirm its May 19, 2011 FAD.
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R. � 1614.402(a) requires that appeals to the Commission be filed within 30 days of receipt of the agency's final action. Per EEOC Regulation 29 C.F.R. � 1614.403(c), if a complainant does not meet the 30-day time limit, the appeal shall be dismissed by the Commission as untimely.
Here, Complainant indicated that the FAD was received on May 20, 2011. A review of the FAD reveals that the Agency properly advised Complainant that she had thirty (30) calendar days after receipt of its final decision to file her appeal with the Commission. Therefore, in order to be considered timely, Complainant had to file her appeal no later than Monday, June 20, 2011.3 We find no persuasive evidence, however, that Complainant filed an appeal with the Commission prior to April 2, 2014, when her attorney contacted OFO requesting the status of her appeal. On the contrary, the Certificate of Service that was included in the fax document indicates that the Agency was served on June 17, 2011, but there was no indication that the Commission was included in that mailing. Moreover, we note that the April 2, 2014, fax did not include any evidence or argument indicating that there was an earlier timely appeal filed with the Commission.
CONCLUSION
Accordingly, we find that Complainant's April 2, 2014 appeal is hereby DISMISSED because we find no evidence that Complainant filed her appeal within thirty (30) days of receiving the FAD. See 29 C.F.R. � 1614.403(c).
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0416)
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 Chap. 9 � VII.B (Aug. 5, 2015). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission. The requests may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. 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 (Z0815)
If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court
has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant's Right to File a Civil Action for the specific time limits).
FOR THE COMMISSION:
______________________________ Carlton M. Hadden's signature
Carlton M. Hadden, Director
Office of Federal Operations
__10/3/16________________
Date
1 This case has been randomly assigned a pseudonym which will replace Complainant's name when the decision is published to non-parties and the Commission's website.
2 Complainant indicated on the form that the FAD was received on May 20, 2011.
3 Sunday, June 19, 2011 was the 30th day; therefore, Complainant had until the next business day.
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