0120101691
08-03-2010
Anthony M. Gay, Complainant, v. Robert M. Gates, Secretary, Department of Defense, (Army & Air Force Exchange Service), Agency.
Anthony M. Gay,
Complainant,
v.
Robert M. Gates,
Secretary,
Department of Defense,
(Army & Air Force Exchange Service),
Agency.
Appeal No. 0120101691
Agency No. AAFES No. 10.017
DECISION
Complainant filed a timely appeal with this Commission from the Agency's decision dated February 19, 2010, dismissing his 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. and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 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
In his complaint, Complainant alleged that the Agency subjected him to discrimination on the bases of age (22) and reprisal for prior protected EEO activity when:
On an unspecified date Complainant was treated differently in the workplace, and after he apparently expressed dissatisfaction and reported the actions he was treated even worse.
Complainant initiated EEO contact on September 29, 2009. Complainant received two notices of his right to file a formal complaint; the first notice was delivered September 29, and the second was delivered October 4. Both notices clearly stated that a formal complaint must be filed within 15 days of receipt of the notice. Complainant, however, filed his formal complaint on November 14, 2009 - when well over one month's time had passed from his receipt of the second notice.
CONTENTIONS ON APPEAL
Complainant insists on appeal that his failure to comply with the filing requirement is due to the allegedly misleading instructions given to him by the EEO Counselor. The Agency submitted no brief in support of its argument.
FINDINGS AND ANALYSIS
EEOC Regulation 29 C.F.R. �1614.106(b) requires the filing of a written complaint with an appropriate agency official within 15 calendar days after the date of receipt of the notice of the right to file a complaint. In addition, documents are deemed timely filed if they are postmarked before the expiration of the applicable limitation period. EEOC Regulation 29 C.F.R. �1614.604(b). As stated, the record reveals that Complainant received the second notice on October 4, 2009; however, he did not file his complaint until November. While Complainant asserted that he misunderstood the EEO Counselor's instructions, the notices specified that a formal complaint must be filed within 15 days of the receipt thereof. Further, the notices contained all information required by 29 C.F.R. �1614.105(d), including the proper procedures for filing a complaint. Therefore, based upon a review of the record, we find that Complainant has failed to submit adequate justification, pursuant to 29 C.F.R. �1614.604(c), for extending the 15-day limitation period. See Mciver v. Social Security Administration, EEOC Appeal No. 01960943 (September 24, 1996). Accordingly, the Agency's decision to dismiss Complainant's complaint as untimely was proper pursuant to 29 C.F.R. � 1614.107(b), and 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
August 3, 2010
__________________
Date
2
0120101691
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120101691