0120123385
01-25-2013
Mavis Lewis, Complainant, v. Ray Mabus, Secretary, Department of the Navy, Agency.
Mavis Lewis,
Complainant,
v.
Ray Mabus,
Secretary,
Department of the Navy,
Agency.
Appeal No. 0120123385
Agency No. 126588800320
DECISION
Complainant filed a timely appeal with this Commission from the Agency's decision dated July 27, 2012, 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., Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Safety Technician at the Agency's Fleet Readiness Center Southwest, North Island facility in San Diego, California.
On July 13, 2012, Complainant filed a formal complaint alleging that the Agency subjected her to discrimination on the bases of race (African-American), national origin (American), sex (female), religion (Christian), color (Black), disability, age (51), and reprisal for prior protected EEO activity when, on October 30, 2011, she found a 2006 position description for a Safety Technician, GS-0019-6/7/9 position, although she has remained a GS-6 since 2006 even though she has been given work at higher grade levels.
The Agency dismissed the complaint pursuant to 29 C.F.R. � 1614.107(a)(2), due to the untimely filing of the formal complaint. In its decision, the Agency asserted that it sent Complainant the notice of right to file in December 2011 by regular and certified mail. According to the Agency, the certified mail was returned without delivery, but the regular letter was not. When Complainant asked about the notice in June 2012, the Agency sent the notice again to the same address and it was not returned. Therefore, the Agency reasons that Complainant must have received the first notice sent to the same address by regular mail in December 2011.
The instant appeal followed. In her appeal, Complainant basically argues that the Agency cannot prove that she received the notice in December 2011.
ANALYSIS AND FINDINGS
The regulation set forth at 29 C.F.R. � 1614.107(a)(2) states, in pertinent part, that an agency shall dismiss a complaint which fails to comply with the applicable time limits contained in 29 C.F.R. � 1614.106(b) which, in turn, requires the filing of a formal complaint within fifteen (15) days of receiving the notice of the right to do so.
Whether or not the complaint was untimely filed depends on when Complainant received the notice of right to file. The record establishes that the EEO counselor mailed the notice of right to file to Complainant's address of record on December 10, 2011. This date is confirmed by a statement from the EEO counselor, receipts for the certified mailing, and a certificate of mailing on the regular mailing containing language that receipt will be presumed within five days of mailing. The certified mail was returned to the EEO counselor on January 19, 2012, as unclaimed by Complainant. The evidence of record also confirms that both letters were sent to Complainant's address of record.1
Where, as here, there is an issue of timeliness, "[a]n agency always bears the burden of obtaining sufficient information to support a reasoned determination as to timeliness." Guy, v. Department of Energy, EEOC Request No. 05930703 (January 4, 1994) (quoting Williams v. Department of Defense, EEOC Request No. 05920506 (August 25, 1992)). Based on the evidence of record, we are persuaded that the Agency has met its burden of establishing that Complainant received the notice of right to file by regular mail sometime in December 2011 (applying the five-day presumption explicitly stated on the certificate of mailing attached to the notice). Although the notice indicated that Complainant had to file a formal complaint within fifteen (15) calendar days of its receipt, Complainant did not file her formal complaint until July 13, 2012, which is beyond the limitation period. On appeal, Complainant has not offered adequate justification to warrant an extension of the time limit for filing the complaint.
Accordingly, the Agency's final decision dismissing Complainant's 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
January 25, 2013
__________________
Date
1 When Complainant contacted the Agency in June 2012 asking about the notice, it again sent the notice through regular and certified mail, and the certified letter was again returned as "unclaimed". Complainant concedes she received the letter sent by regular mail. Both letters were sent to the same address used in December, as well as that provided to the Commission by Complainant.
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0120123385
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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