01a42332
03-31-2005
Phyllis A. Moore, Complainant, v. Michael Chertoff, Secretary, Department of Homeland Security, Agency.
Phyllis A. Moore v. Department of Homeland Security
01A42332
March 31, 2005
.
Phyllis A. Moore,
Complainant,
v.
Michael Chertoff,
Secretary,
Department of Homeland Security,
Agency.
Appeal No. 01A42332
Agency No. 7-03-2174
DISMISSAL OF APPEAL
The record reveals that the agency issued a decision, dated September
15, 2003, dismissing complainant's complaint pursuant to 29 C.F.R. �
1614.107(a)(2) for failure to file the complaint in a timely manner.
In her complaint, complainant alleged that she was unlawfully
discriminated against when on September 25, 2002, she was given
insufficient time to complete the assessment for a screener position
at the Richmond International Airport and that she was not selected for
the screener position.
The record contains complainant's Notice of Appeal, dated September 28,
2003. The Notice of Appeal was received by the Commission on February
9, 2004. A copy of the certified mail return receipt card reveals that
the agency's decision was received at complainant's address of record
by the latest on September 26, 2003.
A review of the agency's decision reveals that the agency properly
advised complainant that she had thirty (30) calendar days after receipt
of its decision to file her appeal with the Commission. The decision also
advised complainant that she had to file her appeal with the Director of
the EEOC's Office of Federal Operations (OFO) and provided complainant
with OFO's Washington, D.C. mailing address.
It appears that complainant sent her Notice of Appeal directly to the
Department of Transportation which was received by the Department of
Transportation on October 6, 2003.<1> The record reveals that the
agency's Transportation Security Administration sent complainant's
Notice of Appeal to the Commission by FedEx on February 6, 2004.
Upon review, the Commission finds that the appeal was untimely,
having been filed beyond the 30-day period for filing a timely appeal.
The Commission has previously held that an appeal is untimely where
it is mailed to the wrong office, even if it would have been timely if
mailed directly to the Commission. See Henry v. Department of Veterans
Affairs, EEOC Request No. 05901116 (November 30, 1990). At the earliest,
the appeal was filed on February 6, 2004, which is more than 30 days
beyond complainant's receipt of the agency decision. Although the
Commission's regulations governing the computation of the time limits
allow for waiver and equitable tolling, complainant has failed to submit
justification to waive or extend the time limitation period.
Accordingly, the appeal is DISMISSED as untimely pursuant to 29 C.F.R. �
1614.403(c).
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 31, 2005
__________________
Date
1The agency against which the complaint was
initiated was the Department of Transportation, Transportation Security
Administration (TSA). The TSA later became a part of the Department of
Homeland Security.