Ruby Hawkins, Complainant,v.F. Whitten Peters, Acting Secretary, Department of the Air Force, Agency.

Equal Employment Opportunity CommissionMay 31, 2000
01a01449 (E.E.O.C. May. 31, 2000)

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.