01996078
03-14-2000
Sandra Q. Oubre, Complainant, v. Togo D. West, Jr., Secretary, Department of Veterans Affairs, Agency.
Sandra Q. Oubre, )
Complainant, )
)
v. ) Appeal No. 01996078
) Agency No. 98-3471
Togo D. West, Jr., )
Secretary, )
Department of Veterans Affairs, )
Agency. )
____________________________________)
DECISION
On July 30, 1999, complainant filed a timely appeal with this Commission
from a final agency decision (FAD) dated June 29, 1999, pertaining to 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.<1> In her complaint, complainant alleged that she was subjected
to discrimination on the basis of race (African American) when:
March 1997 - demotion;
March 1997 - March 1998 - Performance Appraisal; and
May 1998 - Harassment.
The agency dismissed the complaint for failure to file a timely formal
complaint. Specifically, the agency found that complainant received her
notice-of-right-to-file-a-complaint on September 14, 1998, but failed to
file her formal complaint until September 30, 1998. The agency discounted
complainant's argument that she mailed the complaint on September 23,
1998, by stating that the envelope in which the complaint was mailed had a
postmark of September 30, 1998. Alternatively, the agency dismissed claim
(1) for failure to state a claim, because complainant was never actually
demoted, and dismissed claims (2) and (3) for untimely counselor contact.
With regard to claims (2) and (3), the agency found that complainant
raised the claims in her formal complaint, but not during counseling.
Complainant provided no argument on appeal.
The record includes a copy of the notice-of-right-to-file-a-complaint,
dated September 10, 1998. A certified-return-receipt-card shows that
complainant received the notice on September 14, 1998. The record also
contains a copy of the formal complaint, dated September 23, 1998, and
a copy of the envelope in which it was mailed, postmarked September 30,
1998.
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 formal complaint. A complaint is timely if it is postmarked
or received before the expiration of the applicable filing period.
See 64 Fed. Reg. 37,644, 37,661 (1999) (to be codified as 29 C.F.R. �
1614.604(b)). Complaints not filed within fifteen days of receipt of
the notice must be dismissed unless waiver, tolling, or equity dictates
otherwise. See 64 Fed. Reg. 37,644, 37,656 (1999)(to be codified and
hereinafter cited as 29 C.F.R. � 1614.107(a)(2)).
The record in this case indicates that complainant received the notice on
September 14, 1998, and that the notice informed complainant that she had
fifteen days from the date of its receipt to file a formal complaint.
The record further reflects that complainant did not file a formal
complaint within fifteen days, but instead filed the formal complaint
on Wednesday, September 30, 1998. Complainant has failed to present
adequate justification for extending the filing period. Accordingly,
the agency's dismissal of the entire complaint for failure to timely
file a formal complaint is AFFIRMED.<2>
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1199)
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). 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).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S1199)
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:
March 14, 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 Equal Employment Assistant 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.
2Since we are affirming the agency's dismissal of the entire complaint on
the grounds of untimeliness, we will not address the agency's alternative
grounds for dismissal, i.e., that claim (1) fails to state a claim,
and the remaining claims were not timely raised with an EEO counselor.