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

Equal Employment Opportunity CommissionJan 28, 2000
01a00464 (E.E.O.C. Jan. 28, 2000)

01a00464

01-28-2000

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


Stacy L. Hawkins, )

Complainant, )

)

v. ) Appeal No. 01A00464

) Agency No. EPIS99044

F. Whitten Peters, )

Acting Secretary, )

Department of the Air Force, )

Agency. )

____________________________________)

DECISION

On October 20, 1999, complainant filed a timely appeal with this

Commission from a final agency decision (FAD) received on October 4,

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> The Commission accepts complainant's appeal

in accordance with EEOC No. 960.001.

ISSUE PRESENTED

The issue presented herein is whether the agency properly dismissed

the instant complaint for failure to file the formal complaint within

fifteen days of receiving the right to go formal.

BACKGROUND

The record reflects that on June 14, 1999, complainant initiated contact

with an EEO Counselor. During the counseling period, complainant stated

that on May 10, 1999 her superior failed to provide her with an assessment

of her duties as they were described to her, and on April 30, 1999,

she was not provided with an award as recommended in her position review

memorandum dated

March 31, 1999. Unable to resolve the above matter informally,

complainant received the right to file a formal complaint on July 8,

1999. After receiving such, complainant informed the EEO Counselor that

she would not be able to timely submit her formal complaint because

she was too busy working on another appeal and because she was ill.

On August 13, 1999 complainant filed her formal complaint claiming that

she was the victim of unlawful employment discrimination on the bases of

her race (black) and reprisal for prior involvement in the EEO process.

The complaint was comprised of the matters for which complainant underwent

EEO counseling, discussed above.

On appeal, complainant argues that she was granted an extension to file

her formal complaint by her EEO Counselor on July 22, 1999. Complainant

further argues that she is not familiar with the EEO process and the

time limitations associated with it. The agency did not submit any

statement on appeal.

ANALYSIS AND FINDINGS

Where, as here, there is an issue of timeliness, "[a]n agency always bears

the burden of obtaining sufficient information to support a reasoned

determination as to timeliness." Guy, v. Department of Energy, EEOC

Request No. 05930703 (January 4, 1994) (quoting Williams v. Department of

Defense, EEOC Request No. 05920506 (August 25, 1992)). In addition, in

Ericson v. Department of the Army, EEOC Request No. 05920623 (January 14,

1993), the Commission stated that �the agency has the burden of providing

evidence and/or proof to support its final decisions.� See also Gens

v. Department of Defense, EEOC Request No. 05910837 (January 31, 1992).

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.

Volume 64 Fed. Reg. 37,644, 37,656 (1999)(to be codified and hereinafter

cited as 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 in this case indicates that complainant received a notice

of the right to file a formal discrimination complaint on July 8, 1999.

The notice informed complainant that she had fifteen days from the date

of receipt of the notice in which to file a formal complaint. The record

further reflects that complainant did not file a formal complaint within

fifteen days of her receipt of this

notice but, instead filed the formal complaint on August 13, 1999. In

this case, complainant has argued that she was ill, unaware of the

time limitations and was granted an extension. The Commission finds

complainant's statements to be incredulous. First, complainant has

supplied no evidence that she was so incapacitated so as to prevent her

from filing her complaint. Second, complainant should be fully aware of

the time limitations for filing the formal complaint because they were

clearly stated in her notice and moreover, because she has previously

filed EEO complaints. Third, complainant states that she requested

and was granted an extension on July 22, 1999, however, she supplies

no evidence that her request was actually granted. For these reasons,

complainant has failed to present adequate justification, pursuant to

29 C.F.R. � 1614.604(c) for extending the filing period.

CONCLUSION

For the reasons set forth herein, the Commission hereby AFFIRMS the final

decision of the agency dismissing the present complaint for failure to

file the formal complaint within fifteen days of receiving the right to

go formal.

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:

January 28, 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.