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.