0120101657
06-28-2012
Twylla Jimboy, Complainant, v. Ken L. Salazar, Secretary, Department of the Interior (Bureau of Indian Affairs), Agency.
Twylla Jimboy,
Complainant,
v.
Ken L. Salazar,
Secretary,
Department of the Interior
(Bureau of Indian Affairs),
Agency.
Appeal No. 01-2010-1657
Agency No. BIA100133
DECISION
Complainant filed a timely appeal with this Commission from the Agency's decision dated February 12, 2010, 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), due to the untimely filing of the formal complaint.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Human Resources Specialist at the Agency's Haskell Indian Nations University facility in Lawrence, Kansas. On January 7, 2010, Complainant filed a formal complaint alleging that the Agency subjected her to discrimination on the basis of national origin (Native American) when she was issued a directed reassignment to Albuquerque, New Mexico, but then learned that another local facility had not reassigned its Human Resources Specialist.
The agency issued a final decision dismissing the complaint for untimely filing. Specifically, the agency found complainant received the Notice of Final Interview and Right to File a Formal Complaint on December 11, 2009. The agency noted that although the formal complainant was signed December 8, 2009, it was not received by the agency until January 7, 2010. Since the 15 day time frame in which to file a formal complaint had lapsed, the agency dismissed the complaint.
CONTENTIONS ON APPEAL
On appeal, complainant states that she placed her formal complainant into a government paid envelope and placed into the University mailroom drop box prior to December 18, 2009, when she went out on leave. She suggests that the delay may have been due to weather and/or the holidays.
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 15 days of receiving notice of the right to do so. However, in the absence of a legible postmark, a document will be deemed timely if received by mail within five (5) days of the expiration of the 15-day limitation period. See 29 C.F.R. � 1614.604(b).
The record discloses that Complainant received the notice of right to file a formal complaint on December 11, 2009. The fifteenth day after complainant's December 11, 2009 receipt of the Notice was December 26, 2009, which was a Saturday, and therefore we extend that time to the next business day, December 28, 2009. Applying EEOC Regulation 29 C.F.R. � 1614.604(b), regarding illegible postmarks, the Commission determines that the Complaint would have been timely filed if received by the Agency within five days from December 28, 2009, which was January 2, 2010, also a Saturday. Extending the time frame once again to the next business day was Monday, January 4, 2010. Complainant's complaint was not received until January 7, 2010, three days later. Accordingly, we find it was untimely filed.
On appeal, complainant states she was on leave after December 18, 2009, and mailed the envelope sometime prior to her going on leave. Complainant has not provided adequate justification for extending the time frames.
CONCLUSION
Accordingly, the Agency's final decision dismissing Complainant's complaint 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
6/28/2012
__________________
Date
2
01-2010-1657
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
01-2010-1657