0120160882
06-14-2016
Sheena O.,1 Complainant, v. Ray Mabus, Secretary, Department of the Navy, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Sheena O.,1
Complainant,
v.
Ray Mabus,
Secretary,
Department of the Navy,
Agency.
Appeal No. 0120160882
Agency No. 156739903258
DECISION
Complainant filed a timely appeal with this Commission from the Agency's decision (Dismissal) dated December 1, 2015, dismissing her complaint of unlawful employment discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq., Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq., the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq., and Title II of the Genetic Information Nondiscrimination Act of 2008, 42 U.S.C. � 2000ff et seq.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Custodial Worker at the Agency's Marine Corps Community Services, Marine Corps Air Ground Combat Center facility in Twenty-nine Palms, California.
On September 17, 2015, Complainant filed a formal complaint alleging that the Agency subjected her to discrimination on the bases of race (African-American), sex (female), disability (unspecified physical disability), age (47), and reprisal for prior protected EEO activity under an EEO statute that was unspecified in the record when:
1. On 28 August 2015 Complainant was issued a letter of termination; and
2. On unspecified date(s) others employees used offensive language and when Complainant reported the incident(s) to management she was told "this is a man's job."
The Agency dismissed the claims for untimely filing of the Formal Complaint. The instant appeal followed.
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 formal complaint. 29 C.F.R. � 1614.107(a)(2) provides that the agency shall dismiss 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).
The record discloses that Complainant received the notice of right to file a Formal Complaint on September 23, 2015. Although the notice indicated that Complainant had to file the Formal Complaint within fifteen (15) calendar days of its receipt, Complainant did not file her Formal Complaint until November 3, 2015, which is beyond the limitation period. On appeal, Complainant argues that she met with two union representatives on September 28, 2015 to file her Formal Complaint. We note however that pursuant to 29 C.F.R. � 1614.106(a) a complaint must be filed with the agency that allegedly discriminated against the complainant, not with a union or its representatives. The Agency provided Complainant with a notice of right to file that notified her of the fifteen calendar-day time limit and the name and address of the Agency official "authorized to receive discrimination complaints." See Complainant's Appeal Brief, Enclosure 3. That notice does not state that a formal complaint may be filed with a union official or member. See id.
Complainant argues on appeal that the union officials may have mistakenly forwarded a hearing request to the Agency instead of forwarding the Formal Complaint. Even assuming that the two union officials were acting as Complainant's representatives and mistakenly forwarded the wrong form, we note that under � 1614.605(e) complainants are responsible for proceeding with their complaint whether or not they have a designated representative. Because no Formal Complaint was received by the Agency until after the fifteen-day regulatory period had expired, we find that the Agency correctly dismissed the claim.
CONCLUSION
The Dismissal is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0416)
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), at Chap. 9 � VII.B (Aug. 5, 2015). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission. The requests may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. 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 (S0610)
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 (Z0815)
If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant's Right to File a Civil Action for the specific time limits).
FOR THE COMMISSION:
______________________________ Carlton M. Hadden's signature
Carlton M. Hadden, Director
Office of Federal Operations
June 14, 2016
__________________
Date
1 This case has been randomly assigned a pseudonym which will replace Complainant's name when the decision is published to non-parties and the Commission's website.
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