01a01449
05-31-2000
Ruby Hawkins, Complainant, v. F. Whitten Peters, Acting Secretary, Department of the Air Force, Agency.
Ruby Hawkins, )
Complainant, )
)
v. ) Appeal No. 01A01449
) Agency No. AL900000197
F. Whitten Peters, )
Acting Secretary, )
Department of the Air Force, )
Agency. )
____________________________________)
DECISION
Upon review, the Commission finds that complainant's complaint was
properly dismissed pursuant to 64 Fed. Reg. 37,644, 37,656 (1999)(to
be codified and hereinafter referred to as EEOC Regulation 29 C.F.R. �
1614.107(a)(2)), due to the untimely filing of the formal complaint.<1>
The record discloses that complainant received the notice of right to file
a formal complaint on October 14, 1999. Although the notice indicated
that complainant had to file a formal complaint in person or by mail
within fifteen calendar days of its receipt, complainant did not file her
formal complaint until November 2, 1999, beyond the limitation period.
On appeal, complainant asserts that she delayed filing her formal
complaint while waiting for a promised copy of her Counselor's report,
and that by the time she discovered she would not receive it she had no
time left to file her complaint. Complainant also contends that the
EEO office was closed on Friday, October 29, 1999, �the 15th calendar
day in which I was supposed to file my formal complaint,� and also on
the following Monday, November 1, 1999.
EEOC Regulation 29 C.F.R. �1614.106(b) requires that complainants file
their formal complaints of discrimination within 15 days of their receipt
of a notice of the right to file a discrimination complaint. This
time limit is subject to waiver, estoppel, or equitable tolling.
29 C.F.R. �1614.604(c). Pursuant to 29 C.F.R. �1614.107(a)(2), an agency
shall dismiss a complaint which was not filed within the fifteen-day
time period.
In the present case, the Commission finds that complainant failed to
submit adequate justification for extending the time for filing beyond the
regulatory period. Complainant has not only acknowledged her awareness
of the October 29, 1999 limitation date to file her formal complaint,
but also that she delayed filing her complaint because she was waiting
to receive her EEO Counselor's report. Moreover, the record reflects
that complainant's notice of right to file a complaint specifically
stated that the complaint must be filed in person or by mail within
fifteen calendar days after receipt of the notice. Although complainant
asserts that the EEO office was closed on Friday October 29th and Monday
November 1, she has offered no explanation as to why she could not have
filed her complaint by mail to meet the October 29, 1999 filing deadline.
Therefore, we find no basis for tolling the time limit for complainant
to file her complaint.
Accordingly, the agency's final decision dismissing appellant's complaint
is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0300)
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 64
Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred
to as 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 64 Fed. Reg. 37,644, 37,661 (1999) (to be codified and hereinafter
referred to as 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).
COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (S0400)
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:
May 31, 2000
____________________________
Date Carlton M. Hadden, Acting Director
Office of Federal Operations
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days of mailing. I certify that
the decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
_______________ __________________________
Date 1On November 9, 1999, revised regulations governing the EEOC's
federal sector complaint process went into effect. These regulations
apply to all federal sector EEO complaints pending at any stage in
the administrative process. Consequently, the Commission will apply
the revised regulations found at 64 Fed. Reg. 37,644 (1999), where
applicable, in deciding the present appeal. The regulations, as amended,
may also be found at the Commission's website at www.eeoc.gov.