Judith A. Lescarbeau v. Department of the Treasury
01A22757
August 28, 2002
.



Judith A. Lescarbeau,
Complainant,

v.

Paul H. O'Neill,
Secretary,
Department of the Treasury,
Agency.

Appeal No. 01A22757

Agency No. 02-3108

DECISION

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
claimed that she was subjected to discrimination on the bases of sex
(female) and in retaliation for prior EEO activity when, on October
26, 2002, she saw an offensive picture of a sexual nature taped to
a co-worker's computer monitor, and following the reporting of that
incident to her manager and the Revenue Officer manager, she experienced
retaliation by the co-workers interviewed regarding her discrimination
claim.
The record discloses that complainant received the notice of right
to file a formal complaint on January 11, 2002.  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 February 26, 2002, which is beyond the limitation period.

In its final decision, the agency rejects complainant's explanation for
the untimely filing of her formal complaint.  Complainant claims that
she mailed her complaint to the agency's Office of Equal Opportunity
Programs (OEOP), rather than the agency's Chicago Regional Complaint
Center, as directed by the agency's notice of right to file. On appeal,
complainant submits Form TDF 62-03.5, showing agency instructions to
complainants to file their complaints with the Regional Complaint Center
for the geographic area in which they work.  This form also states that
complainants may file their complaints with OEOP, but cautions that this
will delay the processing of the complaints, as the complaints will be
forwarded to the appropriate Regional Complaint Center for processing.
The Commission notes that although the agency's form indicates that
a delay in processing may occur as a result of the submission of a
complaint to OEOP, the form does not indicate that submission of a
complaint to OEOP, cannot constitute a timely filing of the
formal complaint.  Nevertheless, complainant has not submitted any
documentation indicating the date on which she attempted to file her
formal complaint with OEOP.  The only documentation contained in the
record indicating the date on which her complaint was filed is the cover
sheet for the facsimile sent to the Chicago Regional Complaint Center,
showing that complainant filed her formal complaint on February 26,
2002, which is beyond the limitation period.  Therefore, the agency's
final decision dismissing complainant's complaint is AFFIRMED.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0701)

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 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 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 (S0900)

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:


______________________________
Carlton M. Hadden, Director
Office of Federal Operations

August 28, 2002
__________________
Date


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