0120101105
06-15-2010
Donald L. Eaton, Complainant, v. Ray H. LaHood, Secretary, Department of Transportation, (Federal Aviation Administration), Agency.
Donald L. Eaton,
Complainant,
v.
Ray H. LaHood,
Secretary,
Department of Transportation,
(Federal Aviation Administration),
Agency.
Appeal No. 0120101105
Agency No. 2009-22992-FAA-06
DECISION
Complainant filed a timely appeal with the Equal Employment Opportunity
Commission (EEOC or Commission) from the agency's decision dated December
16, 2009, 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., Section 501 of the Rehabilitation
Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq.,
and the Age Discrimination in Employment Act of 1967 (ADEA), as amended,
29 U.S.C. � 621 et seq.
BACKGROUND
The agency defined Complainant's complaint as alleging discrimination
against Complainant based on his race (African-American), disability,
age [73], and reprisal for prior protected EEO activity when:
1. the agency delayed changing his [usual] work assignment for a year
[May 22, 2008 to May 21, 2009] although he had a medical restriction
[from doing his usual work];1
2. after receiving his medical restriction, management verbally harassed
him about his responsibility for all assignments, making comments such as
"someone sitting on their butt and not doing anything;"
3. in [August 2009 or October 2009], his manager told him he should not
have dialed 411 on his government telephone to get a telephone number,
and should have instead used alternative methods to get this information;
and
4. a manager accused him of damaging his assigned vehicle on October
19, 2009.
The agency dismissed the complaint under 29 C.F.R. � 1614.107(a)(2)
because it was untimely filed. It determined that Complainant received
his notice of the right to file (NRF) a discrimination complaint
on November 2, 2009, but did not file the complaint until Wednesday,
November 18, 2009, beyond the fifteen day time limit. The record reflects
that the NRF informed Complainant of the 15 day time limitation and the
address for filing the formal complaint. The agency's final decision
advised Complainant of the EEOC's holding that when the NRF is received
at a complainant's address of record by a family or household member
of suitable age and discretion, a rebuttabe presumption of receipt is
raised.2
The record contains a postal domestic return receipt showing the
NRF was delivered to Complainant's address, and signed for by a K.S.
The date of delivery thereon was illegible. The agency submitted a
corresponding computerized track and confirm receipt indicating that
the NRF was delivered on November 2, 2009. It does not specify the
delivery address.
CONTENTIONS ON APPEAL
Complainant writes that when he first saw the NRF on November 4, 2010,
and did not know it came in two days earlier. He writes that when his
complaint was dismissed, he called the postal service to find out who
signed for the NRF mailing. He writes that his daughter/step-daughter,
who does not live in his home, signed for the mail and placed it on a
table with lots of presents and Christmas paper wrapping.
ANALYSIS AND FINDINGS
The Commission has held that receipt of a document at a complainant's
address by a member of the complainant's family or household of suitable
age and discretion creates a rebuttal presumption of constructive
receipt. Fontanella v. General Services Administration, EEOC Request
No. 05940131 (April 10, 1995). We find that the preponderance
of the evidence is that the NRF was delivered to Complainant's
address on November 2, 2010. Complainant does not contend that his
daughter/step daughter, who signed for the mailing, was not of suitable
age and discretion. Accordingly, Complainant's filing the complaint
on November 18, 2010, was beyond the 15 calendar day time limit to file
a complaint.
The final agency decision is AFFIRMED.
We note that by letter dated March 8, 2010, the agency forwarded to the
Commission correspondence Complainant sent around March 2, 2010 to the
agency's Associate Director, Compliance Operation Division, Department
of Civil Rights. This is where complaints are filed. In its forwarding
cover letter, the agency suggested that Complainant's correspondence
related to the instant appeal. Much of this correspondence concerns acts
of alleged discrimination which occurred after the complaint at issue.
If Complainant wishes the agency to process these matters as an EEO claim,
he should immediately contact an EEO counselor and explain what occurred
with his correspondence and raise his new claims.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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), 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 (S0408)
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 (Z1008)
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
June 15, 2010
__________________
Date
1 Complainant also alleged that on May 21, 2009, his physician restricted
him from climbing stairs and ladders, but he was still assigned to
maintain specified equipment which violated his restrictions until August
20, 2009, or August 23, 2009.
2 The final agency decision also contained language dismissing the
complaint for failure to timely initiate EEO counseling. It appears
this language was inadvertently placed in the decision because it did
not correctly refer to the facts in this case. For example, it cited
the wrong counselor contact date and claims which were not part of
Complainant's complaint.
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0120101105
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120101105