Antonio Lyles, Complainant,v.William S. Cohen, Secretary, Department of Defense, Agency.

Equal Employment Opportunity CommissionJul 20, 2000
01a03148 (E.E.O.C. Jul. 20, 2000)

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.