Raheemah Norris, Appellant,v.Richard J. Danzig, Secretary, Department of the Navy, Agency.

Equal Employment Opportunity CommissionSep 23, 1999
01976711 (E.E.O.C. Sep. 23, 1999)

01976711

09-23-1999

Raheemah Norris, Appellant, v. Richard J. Danzig, Secretary, Department of the Navy, Agency.


Raheemah Norris v. Department of the Navy

01976711

September 23, 1999

Raheemah Norris, )

Appellant, )

)

v. ) Appeal No. 01976711

) Agency No. 97-65886-022

Richard J. Danzig, )

Secretary, )

Department of the Navy, )

Agency. )

)

DECISION

Appellant filed an appeal with this Commission from a final decision of

the agency concerning her complaint of unlawful employment discrimination,

in violation of Title VII of the Civil Rights Act of 1964, as amended,

42 U.S.C. �2000e et seq. The final agency decision was received by

appellant on August 25, 1997. The appeal was postmarked September 1,

1997. Accordingly, the appeal is timely (see 29 C.F.R. �1614.402(a)),

and is accepted in accordance with EEOC Order No. 960, as amended.

ISSUE PRESENTED

The issue on appeal is whether the agency properly dismissed appellant's

complaint for failing to timely file a formal complaint.

BACKGROUND

Appellant contacted an EEO counselor on May 23, 1997, regarding

allegations of discrimination. Specifically, appellant alleged that

she was discriminated against when on May 19, 1997 she was counseled by

her supervisor about (1) leaving the work area without permission; (2)

clocking on work not being performed; (3) disrespectful and insulting

conduct at roll call; and (4) unaccounted time reflected in the Daily

Labor Exception Report. Appellant was advised during her final interview

on June 20, 1997 that informal efforts to resolve her concerns were

unsuccessful. Also on June 20, 1997 appellant received notice of her

right to file a formal complaint of discrimination within fifteen

(15) days of her receipt of said notice. The fifteenth day on which

appellant had to file a formal complaint fell on Saturday, July 5, 1997.

Pursuant to 29 C.F.R. �1614.604, appellant had until Monday, July 7,

1997 to timely file a formal complaint. The record indicates that on

July 14, 1997, appellant filed a formal complaint of discrimination on

the bases of race (black) and sex (female). On August 20, 1997, the

agency issued its final decision (FAD) dismissing appellant's complaint

pursuant to 29 C.F.R. �1614.107(b).

ANALYSIS AND FINDINGS

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 complaint required by 29 C.F.R. �1614.105(d), (e), or (f).

EEOC Regulation 29 C.F.R. �1614.107(b) provides that the agency shall

dismiss a complaint or a portion of a complaint that fails to comply

with the applicable time limits contained in �� 1614.105, 1614.106,

and 1614.204(c), unless the agency extends the time limits in accordance

with �1614.604(c).

On appeal in the instant matter, the EEO Counselor provided an affidavit

dated November 3, 1997, in which she details statements made during

appellant's final interview on June 20, 1997. Therein, the EEO Counselor

indicates that she informed appellant that her immediate supervisor

did not agree to remove a Letter of Counseling issued to appellant.

Appellant was further informed that the Division Director had stated

that he would not interfere with the decision of appellant's supervisor.

The EEO Counselor's affidavit further indicates that she advised appellant

that since appellant had fifteen (15) calendar days in which to file a

formal complaint, she (the Counselor) would contact the Division Director

once more regarding overriding the decision of appellant's supervisor

regarding the Letter of Counseling.

The EEO Counselor indicates that she spoke with the Division Director on

June 23, 1997 who declined to change his decision on the matter. The EEO

Counselor indicates that she was unable to reach appellant regarding the

Division Director's decision. The record reveals that the EEO Counselor

was on leave from Thursday, July 3, 1997 through Monday, July 7, 1997.

In appellant's statement on appeal, she indicates that the EEO Counselor

instructed her to call on Monday, July 7, 1997 since the fifteenth day for

appellant to file a formal complaint fell on Saturday, July 5, 1997.

The record further reveals that when the EEO Counselor returned to

work on Tuesday, July 8, 1997 appellant had left a voice mail message

indicating that she [appellant] was waiting to hear from the Counselor

so that she could file her formal complaint.

Appellant indicates that she was contacted by the EEO Counselor on

Thursday, July 10, 1997 and was advised to meet with the Counselor on

Monday July 14, 1997 at which time, appellant asserts, she filed her

formal complaint. The EEO Counselor indicates that at no time during

her final interview with appellant on June 20, 1997 did she suggest that

the fifteen (15) days for filing a formal complaint would be extended

for any reason. The EEO Counselor asserts that appellant was well aware

of her rights with respect to filing her formal complaint as evidenced

by her signature on the Notice of Right to File issued to appellant on

June 20, 1997.

As discussed above, appellant indicates that she was waiting to

hear from the EEO Counselor prior to filing her formal complaint.

Appellant indicates further that she was prepared to file a formal

complaint during her June 20, 1997 final interview. Appellant contends,

however, that the EEO Counselor insisted that appellant take the fifteen

(15) days to think things over. Upon review, we find that appellant

has failed to provide the Commission with persuasive evidence that the

fifteen day time period had been extended. There is no evidence of

record indicating that appellant could reasonably have believed that

she had more than fifteen days in which to file her formal complaint.

Upon review of the record, we find that appellant's actions with respect

to filing her formal complaint were not reasonable under the circumstances

of the instant case. In that regard, we find that the time for filing

appellant's formal complaint should not be extended pursuant to EEOC

Regulation 29 C.F.R. �1614.604(c).

CONCLUSION

The agency's decision to dismiss appellant's complaint is hereby

AFFIRMED.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0795)

The Commission may, in its discretion, reconsider the decision in this

case if the appellant or the agency submits a written request containing

arguments or evidence which tend to establish that:

1. New and material evidence is available that was not readily available

when the previous decision was issued; or

2. The previous decision involved an erroneous interpretation of law,

regulation or material fact, or misapplication of established policy; or

3. The decision is of such exceptional nature as to have substantial

precedential implications.

Requests to reconsider, with supporting arguments or evidence, MUST

BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this

decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive

a timely request to reconsider filed by another party. Any argument in

opposition to the request to reconsider or cross request to reconsider

MUST be submitted to the Commission and to the requesting party

WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request

to reconsider. See 29 C.F.R. �1614.407. All requests and arguments

must bear proof of postmark and 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 filed on the date it is received

by the Commission.

Failure to file within the time period will result in dismissal of your

request for reconsideration as untimely. If extenuating circumstances

have prevented the timely filing of a request for reconsideration,

a written statement setting forth the circumstances which caused the

delay and 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).

RIGHT TO FILE A CIVIL ACTION (S0993)

It is the position of the Commission that 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.

You should be aware, however, that courts in some jurisdictions have

interpreted the Civil Rights Act of 1991 in a manner suggesting that

a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the

date that you receive this decision. To ensure that your civil action

is considered timely, you are advised to file it WITHIN THIRTY (30)

CALENDAR DAYS from the date that you receive this decision or to consult

an attorney concerning the applicable time period in the jurisdiction

in which your action would be filed. In the alternative, you may file a

civil action AFTER ONE HUNDRED AND EIGHTY (180) CALENDAR DAYS of the date

you filed your complaint with the agency, or filed your appeal with the

Commission. 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. Filing a civil

action will terminate the administrative processing of your complaint.

RIGHT TO REQUEST COUNSEL (Z1092)

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:

September 23, 1999

____________________________

DATE Carlton M. Hadden, Acting Director

Office of Federal Operations