0120091424
06-16-2009
Vanita Hardy, Complainant, v. Dr. Donald C. Winter, Secretary, Department of the Navy, Agency.
Vanita Hardy,
Complainant,
v.
Dr. Donald C. Winter,
Secretary,
Department of the Navy,
Agency.
Appeal No. 0120091424
Agency No. 08-62381-01233
DECISION
Complainant filed a timely appeal with this Commission from the agency's
final decision dated December 8, 2008, 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.
Upon review, the Commission finds that complainant's complaint was
properly dismissed pursuant to 29 C.F.R. � 1614.107(a)(2).
On March 27, 2008, complainant initiated contact with an EEO Counselor
(EC) alleging that the agency subjected her to hostile work environment
harassment on the basis of sex (female) when (a) on February 4, 2008,
a supervisor (S1) did not provide her lodging in the manner he did
for similarly-situated coworkers, (b) in December 2007, S1 accused
complainant of walking off the job after she sustained injuries to her
hands and sought medical assistance, (c) in October 2007, S1 monitored
complainant's work and told coworkers not to talk to complainant during
working hours, which ostracized complainant at work, (d) in August
2007, someone wrote an offensive term that referred to complainant's
sexual orientation on a sign over her work area and management failed
to discipline anyone regarding the matter, and (e) S1 terminated her
ship assignment. EC sent complainant a Notice of Final Interview dated
June 30, 2008 informing her of the right to file a formal EEO complaint
"within 15 calendar days after receipt of [the] notice.1" Further,
EC informed complainant that her claim could be dismissed as untimely
if she filed outside of the 15-day time-frame.
On October 10, 2008, complainant faxed a statement starting "this is
my formal complaint" and reiterating the above harassment claim.
In its December 8 final decision, the agency dismissed the instant
complaint pursuant to 29 C.F.R. � 1614.107(a)(2) for untimely filing.
The instant appeal from complainant followed.
On appeal, complainant stated that she filed her informal and formal
complaints in March 2008, as well as a clarification of issues response
in July 2008, so she did not realize that she had to file again after
receiving the June 30 Notice. Complainant indicated that the various
correspondences from the agency confused her so she decided to handle
the matter in September 2008 once she got off her agency ship assignment.
In opposition to complainant's appeal, the agency stated that complainant
was aware of the statutory time frames because she received Notice of
EEO Rights and Responsibilities in March 2008 and EEO training on three
occasions since 2006. Further, the agency stated that, on July 31,
2008, EC advised complainant to file her formal complaint and provide
an explanation as to its untimeliness, and that complainant received
the 15-day notice on July 12 via email.
In pertinent part, the EEOC Regulation found at 29 C.F.R. � 1614.107(a)(2)
allows an agency to dismiss a complaint that fails to comply with the
applicable time limits contained in 29 C.F.R. � 1614.106. 29 C.F.R. �
1614.106(b) requires a complainant to file a formal complaint within
fifteen (15) days of receiving notice of the right to do so.
In the instant matter, the record reveals that the agency sent complainant
notice informing her of the right to file a formal EEO complaint within
15 calendar days of the date she received said notice. A return receipt
indicates that complainant received the notice via mail on July 23, 2008.
However, complainant did not file her formal complaint until October 10,
2008, which is well beyond the fifteen-day time limit. Complainant argues
confusion as to her responsibilities. However, we are not persuaded
that the circumstances as outlined herein warrant an extension of the
time limit for filing the formal complaint. We AFFIRM the final agency
decision dismissing complainant's harassment claim.
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
June 16, 2009
__________________
Date
1 We note the record contains a domestic return receipt with complainant's
signature and the date July 23, 2008.
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0120091424
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120091424