0120113788
11-05-2012
Georgia Kimbrough, Complainant, v. Leon E. Panetta, Secretary, Department of Defense (Defense Commissary Agency), Agency.
Georgia Kimbrough,
Complainant,
v.
Leon E. Panetta,
Secretary,
Department of Defense
(Defense Commissary Agency),
Agency.
Appeal No. 0120113788
Agency No. DeCA-00114-2011
DECISION
Complainant filed a timely appeal with this Commission from the Agency's final decision dated July 5, 2011, 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.
BACKGROUND
During the period at issue, Complainant worked as a Store worker, WG-04, at the Agency's Redstone Arsenal Commissary in Redstone Arsenal, Alabama.
On June 23, 2011, Complainant filed the instant formal complaint. Therein, Complainant alleged that the Agency subjected her to discrimination on the bases of race, sex, and color.
On July 5, 2011, the Agency issued a final decision. The Agency dismissed Complainant's formal complaint pursuant to 29 C.F.R. � 1614.107(a)(2), on the grounds that it was untimely filed. The Agency determined that Complainant received the Notice of Right to File a Discrimination Complaint (hereinafter referred to as "Notice") on June 7, 2011, which notified Complainant that a formal complaint had to be filed within fifteen days of receipt of the Notice. The Agency further determined that Complainant's representative received a copy of the Notice on June 4, 2011. However, the Agency found that Complainant waited until June 23, 2011, to file a formal complaint, which it found to be beyond the requisite fifteen days from the date of the receipt of the Notice.
The Agency also noted that Complainant raised new allegations in the instant formal complaint that were not brought to the attention of the EEO Counselor. The Agency advised Complainant to initiate contact with an EEO Counselor if she wishes to pursue the additional allegations.
The instant appeal followed.
ANALYSIS AND FINDINGS
The regulation set forth at 29 C.F.R. � 1614.107(a)(2) states, in pertinent part, that an Agency shall dismiss a complaint which fails to comply with the applicable time limits contained in 29 C.F.R. � 1614.106, which, in turn, requires the filing of a formal complaint within fifteen (15) days of receiving notice of the right to do so. Based on a thorough review of the record, the Commission concludes that the dismissal, due to the untimely filing of the formal complaint, was proper.
The record contains sufficient evidence reflecting Complainant's acknowledgment of the Notice on. Specifically, the record contains a copy of the Notice. Therein, Complainant acknowledged receiving the Notice on June 7, 2011 by signing her name, while Complainant's representative acknowledged receiving the Notice on June 4, 2011 by signing her name. Moreover, the record reflects that Complainant filed the formal complaint on June 23, 2011, after the 15-day limitation period for timely filing a formal complaint.
On appeal, argues that her formal complaint was timely filed because an EEO specialist suggested that Complainant file a formal complaint on June 23, 2011, which was the same day that the EEO specialist provided a response to her representative's request for a filing extension. We further note that the record contains a copy of the EEO specialist's email response dated June 23, 2011 to a request for an extension, made by Complainant's representative. However, therein, the EEO specialist denied the Complainant's request for extension by stating "we do not ordinarily provide extensions for filing a formal complaint unless there are extenuating circumstances...my recommendation is to get the formal complaint postmarked today, if it has not already been done, and a determination will be made about timeliness by our Complaints Manager (emphasis added)." Therefore, we find that Complainant has not presented adequate justification for extending the limitation period.
The Agency's final decision dismissing the instant formal complaint on the grounds of untimely filing is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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 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 (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 (Z0610)
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
November 5, 2012
__________________
Date
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0120113788
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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