0120092305
09-17-2009
Tracy Mays, Complainant, v. Dr. Donald C. Winter, Secretary, Department of the Navy, Agency.
Tracy Mays,
Complainant,
v.
Dr. Donald C. Winter,
Secretary,
Department of the Navy,
Agency.
Appeal No. 0120092305
Agency No. 094215800439
DECISION
Complainant filed a timely appeal with this Commission from the
agency's decision dated April 11, 2009, dismissing her complaint of
unlawful employment discrimination in violation of Section 501 of
the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29
U.S.C. � 791 et seq. Upon review, the Commission finds that complainant's
complaint was properly dismissed pursuant to 29 C.F.R. � 1614.107(a)(2),
due to the untimely filing of the formal complaint. In her complaint,
complainant alleged that she was subjected to discrimination on the
basis of disability when from March 2008 through December 2008, she was
harassed by her co-workers who made inappropriate comments regarding her
personal medical issues. Complainant alleges further that the agency
failed to take action.
The record discloses that on March 4, 2008, a Notice of Final Interview
was mailed to complainant's home address. According to agency records,
the Notice was received at complainant's address of record on March
6, 2009. Although the notice indicated that complainant had to file
a formal complaint within fifteen (15) calendar days of its receipt,
complainant did not file her formal complaint until March 27, 2009,
which is beyond the limitation period. On appeal, complainant argues
that although records establish that her husband signed for the Notice
on March 6, 2009, she was not present at her home during that time and
did not receive the Notice until March 17, 2009, when her husband sent
it to her via Federal Express. Complainant argues further that because
she was on a temporary duty assignment, she was not able to file her
complaint until she returned to her duty station on March 27, 2009.
Upon review, the Commission is not persuaded by complainant's arguments
on appeal. EEOC Regulations provide that the agency's Notice will be sent
to the address of record of the aggrieved individual. In this matter,
complainant had 15 days from the date that the Notice was received at her
address of record to file her formal complaint. The Commission finds
that complainant has not offered adequate justification to warrant an
extension of the time limit for filing the complaint.
Accordingly, the agency's final decision dismissing complainant's
complaint is affirmed.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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), 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 77960,
Washington, DC 20013. 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 (S0408)
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 (Z1008)
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 from the Court that
the Court appoint an attorney to represent you and that the Court also
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 with
the Court 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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
September 17, 2009
__________________
Date
2
0120092305
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013