0120142972
01-13-2015
Complainant, v. Robert McDonald, Secretary, Department of Veterans Affairs, Agency.
Complainant,
v.
Robert McDonald,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120142972
Agency No. 200H-0614-2014102023
DECISION
Complainant filed a timely appeal with this Commission from the Agency's final decision dated August 13, 2014, dismissing a formal 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.
BACKGROUND
During the period at issue, Complainant worked as an IT Specialist at the Agency's Veterans Affairs Medical Center in Memphis, Tennessee.
On June 30, 2014, Complainant filed the instant formal complaint, alleging discrimination on the bases of race, sex, color, and age.
On August 13, 2014, the Agency issued the instant final decision. Therein, the Agency dismissed the formal complaint pursuant to 29 C.F.R. � 1614.107(a)(2), on the grounds that it was untimely filed. The Agency determined that Complainant received the Notice of Right to File a Discrimination Complaint (hereinafter referred to as "Notice") on June 11, 2014, which indicated that a formal complaint had to be filed within fifteen days of receipt of the Notice. However, the Agency found that Complainant waited until June 30, 2014, to file his formal complaint, which it found to be beyond the requisite fifteen days from the date of the receipt of the Notice.
The record contains a copy of a document titled "Request for additional information/documentation in your EEO Complaint, Case No. 200H-0614-2014102023, filed on June 30, 2014. Therein, the Regional EEO Counselor requested that Complainant provide an explanation for the untimely filing of the formal. In his August 10, 2014 response, Complainant stated "my reason for submitting my complaint was as I indicated. The package sat on my desk (at home) and I discovered it after returning from my niece's graduation from high school. It also happened that I was assigned to attend an IT Certification Course located at New Horizon's Learning Center (here in Memphis)...my busy schedule, the fact that my son was not aware that the package was time-sensitive and my disgust with my current situation led to my attempts to redouble and refocus my efforts in a more constructive direction resulted in my delay in returning all the information in a timely manner."
Complainant, on appeal, argued that he timely filed his complaint on June 30, 2014 "after being received on 11 June 2014 (4 days after the expiration date) and within the 5 days subsequent to the expiration date, and deemed to be timely [emphasis in its original]." Complainant also stated that he did not know that the Notice was on his desk at home until June 29, 2014.
In response, the Agency restated its assertions that Complainant's complaint was untimely filed. For instance, the Agency's stated that the five-day rule "applies only when there is not a legible postmark; and in the instant case, there was a legible postmark."
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, which, in turn, requires the filing of a formal complaint within fifteen (15) days of receiving notice of the right to do so.
Based on a thorough review of the record and consideration of the arguments on appeal, the Commission concludes that the Agency dismissal, due to the untimely filing of the formal complaint, was proper. Complainant, on appeal, does not dispute receiving the Notice on June 11, 2014. His formal complaint, filed on June 30, 2014, was more than fifteen days after the limitation period set forth in the regulations. Complainant has not presented adequate justification for extending the limitation period beyond fifteen days.
The Agency's final decision to dismiss the formal complaint for the reason stated herein 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 13, 2015
__________________
Date
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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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