01a03148
07-20-2000
Antonio Lyles, Complainant, v. William S. Cohen, Secretary, Department of Defense, Agency.
Antonio Lyles v. Department of Defense
01A03148
July 20, 2000
.
Antonio Lyles,
Complainant,
v.
William S. Cohen,
Secretary,
Department of Defense,
Agency.
Appeal No. 01A03148
Agency No. 99REF018
DECISION
INTRODUCTION
Complainant filed an appeal with this Commission from a final agency
decision concerning his complaint of unlawful employment discrimination
in violation of Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. � 2000e et seq.<1> The appeal is accepted pursuant to 64
Fed. Reg. 37,644 37,659 (1999) (to be codified at 29 C.F.R. � 1614.405).
For the following reasons, the Commission REVERSES and REMANDS the final
agency decision.
ISSUE PRESENTED
The issue presented herein is whether the agency properly dismissed
complainant's formal EEO complaint for failure to file in a timely
manner.
BACKGROUND
Complainant filed a formal complaint on July 16, 1999, alleging
discrimination on the basis of race (Black) when he received a �Fully
Successful� performance appraisal on April 28, 1999. In its final
decision, the agency dismissed the complaint pursuant to 29 C.F.R. �
1614.107(a)(2) upon concluding that complainant failed to file his
complaint within fifteen (15) days of receiving his right to file notice.
This appeal followed.
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R. � 1614.106(b) requires the filing of a
written complaint with an appropriate agency official within fifteen
(15) calendar days after the date of receipt of the notice of the right
to file a formal complaint.
Volume 64 Fed. Reg. 37,644, 37,656 (1999)(to be codified and hereinafter
cited as 29 C.F.R. � 1614.107(a)(2)) provides that the agency shall
dismiss a complaint or a portion of a complaint that fails to comply
with the applicable time limits contained in � 1614.106, unless the
agency extends the time limits in accordance with � 1614.604(c).
The record in this case indicates that complainant received a notice of
the right to file a formal complaint of discrimination on June 30, 1999.
The notice informed complainant that he had fifteen days from the date
of receipt of the notice in which to file a formal complaint. The record
further reflects that complainant did not file a formal complaint within
fifteen days of his receipt of this notice but, instead filed the formal
complaint on Friday, July 16, 1999, one day beyond the filing deadline.
On appeal, complainant argued that, on June 30, 1999, when he indicated
to the EEO counselor during the final interview that he planned to
file a formal complaint, she told him that he should think about his
decision and that he had fifteen days to do so. According to him,
he interpreted that to mean that fifteen days had to pass before he
could file a formal complaint. But the notice of the right to file,
signed by complainant on June 30, 1999, indicates clearly that he was
informed that he had the right to file a �complaint of discrimination
within 15 calendar days after receipt of this notice.� For that reason,
we find that an extension of the time limit is not warranted. As such,
the formal complaint should have been filed on July 15, 1999. The July
16th filing is untimely.
CONCLUSION
Based on the foregoing, the Commission holds that the agency's decision
to dismiss complainant's formal EEO complaint pursuant to 29 C.F.R. �
1614.107(a)(2) was appropriate and is, therefore, AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0300)
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 64
Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred
to as 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 64 Fed. Reg. 37,644, 37,661 (1999) (to be codified and hereinafter
referred to as 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).
COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (S0400)
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, Acting Director
Office of Federal Operations
July 20, 2000
__________________
Date
1On November 9, 1999, revised regulations governing the EEOC's federal
sector complaint process went into effect. These regulations apply to all
federal sector EEO complaints pending at any stage in the administrative
process. Consequently, the Commission will apply the revised regulations
found at 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.