0120161981
08-30-2016
Billie S.,1 Complainant, v. Ashton B. Carter, Secretary, Department of Defense (Army & Air Force Exchange Service), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Billie S.,1
Complainant,
v.
Ashton B. Carter,
Secretary,
Department of Defense
(Army & Air Force Exchange Service),
Agency.
Appeal No. 0120161981
Agency No. 15059
DISMISSAL OF APPEAL
By facsimile sent on May 25, 2016, Complainant filed an appeal with this Commission from the August 15, 2015 final Agency decision (FAD) concerning his EEO complaint of unlawful employment discrimination alleging a violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq.
At the time of the events at issue, Complainant was employed by the Agency in a restaurant in the Exchange at Fort Irwin, California. In March 2015, he contacted an EEO counselor at the Agency to complain about sexual harassment when he alleged other employees were making disparaging and sexual remarks about him through the telephone, as well as posting these remarks on Facebook, Instagram and Twitter. On May 29, 2015, when the matter could not be resolved informally, Complainant filed a formal EEO complaint on the matter.
By FAD dated August 15, 2015, the Agency dismissed the complaint for untimely EEO counselor contact. The record shows that the FAD was received at Complainant's address of record on August 24, 2015. A review of the FAD reveals that the Agency properly advised Complainant that he had thirty (30) calendar days after receipt of its final decision to file his appeal with the Commission. Therefore, in order to be considered timely, Complainant had to file his appeal no later than September 23, 2015. However, he did not file his appeal until eight months later on May 25, 2016. Complainant has not offered any justification for an extension of the applicable time limit for filing his appeal.
Accordingly, Complainant's May 25, 2016 appeal is hereby DISMISSED as untimely filed. See 29 C.F.R. � 1614.403(c).
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0416)
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 Chap. 9 � VII.B (Aug. 5, 2015). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission. The requests may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. 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 (Z0815)
If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant's Right to File a Civil Action for the specific time limits).
FOR THE COMMISSION:
______________________________ Carlton M. Hadden's signature
Carlton M. Hadden, Director
Office of Federal Operations
August 30, 2016
__________________
Date
1 This case has been randomly assigned a pseudonym which will replace Complainant's name when the decision is published to non-parties and the Commission's website.
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