0120111161
01-05-2012
Carlos A. Powell, Sr., Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.
Carlos A. Powell, Sr.,
Complainant,
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120111161
Agency No. 200P03452010104518
DECISION
Complainant filed a timely appeal with this Commission from the Agency's
decision dated November 29, 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
Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act),
as amended, 29 U.S.C. § 791 et seq.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked
as a File Clerk at the Agency’s facility in Phoenix, Arizona.
On October 8, 2010, Complainant filed a formal complaint alleging that
the Agency subjected him to discrimination on the bases of race (not
specified), sex (male), color (not specified), and disability when,
on August 5, 2010, Complainant was issued a proposed removal which was
sustained and he was removed effective September 17, 2010. The Agency
dismissed the complaint, pursuant to 29 C.F.R. § 1614.107(a)(2), for
untimely filing of the formal complaint.
The instant appeal followed.
ANALYSIS AND FINDINGS
The regulation set forth at 29 C.F.R. § 1614.107(a)(2) states, in
pertinent part, that an agency shall dismiss a complaint which fails
to comply with the applicable time limits contained in 29 C.F.R. §
1614.106(b) which, in turn, requires the filing of a formal complaint
within fifteen (15) days of receiving the notice of the right to do so.
The record discloses that Complainant received the notice of right to file
a formal complaint on September 20, 2010. Accordingly, Complainant had
until October 5, 2010, to file his complaint. The record establishes that
Complainant filed his complaint by mail in an envelope without a postmark.
The complaint is date-stamped as received by the Agency on October 13,
2010. 29 C.F.R. §1614.604(b) provides that a document shall be deemed
timely if it is received or postmarked before the expiration of the
applicable filing period, or, in the absence of a legible postmark,
if it is received in the mail within five days of the expiration of
the applicable filing period. Therefore, in its dismissal decision,
the Agency properly construed the complaint filing date to be October 8,
2010, which was still three days beyond the fifteen-day filing period.
The Agency sought to find out the reason for Complainant’s delay
in filing his formal complaint, but he did not response to their
inquiries. On appeal, Complainant states he was sick and his children
were also sick, and that he was trying to attend school. Complainant
has not offered adequate justification to warrant an extension of
the time limit for filing the complaint. We have consistently held,
in cases involving physical or mental health difficulties, that an
extension is warranted only where an individual is so incapacitated by
his condition that he is unable to meet the regulatory time limits. See
Davis v. U.S. Postal Serv., EEOC Request No. 05980475 (Aug. 6, 1998);
Crear v. U.S. Postal Serv., EEOC Request No. 05920700 (Oct. 29, 1992).
Complainant has not established that he met this standard.
Accordingly, the Agency's final decision dismissing Complainant's
complaint 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
January 5, 2012
__________________
Date
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0120111161
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120111161