0120160157
02-12-2016
Micki C.,1 Complainant, v. Ashton B. Carter, Secretary, Department of Defense, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Micki C.,1
Complainant,
v.
Ashton B. Carter,
Secretary,
Department of Defense,
Agency.
Appeal No. 0120160157
Agency No. 2015-PFPA-032
DECISION
Complainant filed a timely appeal with this Commission from the Agency's decision dated September 3, 2015, 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.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Physical Security Specialist at the Agency's Pentagon Force Protection Agency facility in Washington, DC.
On August 13, 2015, Complainant filed a formal complaint alleging that the Agency subjected her to discrimination on the bases of race (African-American), color (Black), and reprisal when: (1) on numerous occasions, the Supervisory Security Specialist (SSS) pointed her finger at Complainant while speaking to her in a loud tone of voice; (2) in April 2015, SSS issued Complainant a rating of "met" on her 2014 performance appraisal; (3) during 2015, SSS denied Complainant leave for a scheduled court appearance; (4) since Complainant slipped at work on July 1, 2015, SSS attempted to interfere with Complainant's efforts to receive worker's compensation; (5) on June 22, 2015, SSS denied Complainant a lunch break; (6) on June 19, 2015, SSS instructed a co-worker to inform Complainant that annual leave must be pre-approved, and calling in on the same day was unacceptable; (7) on May 26, 2015, the second-line supervisor failed to address SSS's behavior toward Complainant; and (8) on May 21, 2015, SSS required Complainant to provide doctor's notes when she was out of the office.
The Agency dismissed the complaint, pursuant to 29 C.F.R. � 1614.107(a)(2), due to the untimely filing of the formal complaint. The instant appeal followed.
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, which, in turn, requires the filing of a formal complaint within fifteen (15) days of receiving notice of the right to do so.
The record discloses that Complainant received the notice of right to file a formal complaint on July 27, 2015. 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 August 13, 2015, 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. Complainant explains that because of a slip and fall at work, she was off work for 12-15 days with a slight break, and she returned to work on July 27, 2015. While Complainant's fall was unfortunate, we have consistently held, in cases involving physical or mental health difficulties, that an extension is warranted only where an individual is so incapacitated by her condition that she is unable to meet the regulatory time limits. See Davis v. U.S. Postal Serv., EEOC Request No. 05980475 (Aug. 6, 1998); Crear v. U.S. Postal Serv., EEOC Request No. 05920700 (Oct. 29, 1992). Complainant has not established such incapacity here.
Accordingly, the Agency's final decision dismissing Complainant's complaint is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0815)
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, 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 (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
February 12, 2016
__________________
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.
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