0120082579
11-05-2008
Evangleses Moore, JR, Complainant, v. Henry M. Paulson, Jr., Secretary, Department of the Treasury, Agency.
Evangleses Moore, JR,
Complainant,
v.
Henry M. Paulson, Jr.,
Secretary,
Department of the Treasury,
Agency.
Appeal No. 0120082579
Agency No. EEODFS-07-0891-F
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision 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.
On August 11, 2007, complainant contacted the EEO office alleging
that he was discriminated on the bases of race (African-American), sex
(male), and in reprisal for prior protected EEO activity when he was
not provided with a mandatory progress review prior to being issued
his annual performance appraisal and, on June 28, 2007, he received an
unjustifiable low annual performance rating of 4.2.
Informal efforts to resolve the matter were unsuccessful, and the EEO
Counselor issued the notice of right to file which complainant received
in November 1, 2007. The notice informed complainant that he had to file
a formal complaint within 15 calendar days of receipt of the notice of
right to file. The agency received complainant's formal complaint by
facsimile transmission on November 17, 2007 at 1:26 a.m. The fifteenth
day from complainant's receipt of the notice of right to file was on
Friday, November 16.
On January 29, 2008, the agency sent complainant a request for additional
information, inquiring as to why the complaint was filed beyond the
15-day time period. In an electronic message dated February 13, 2008,
complainant explained that he sent his complaint by facsimile to the
agency on November 16, 2007, between 11:57 and 11:58, but due to the fax
dial-up connection, it was likely it was not transmitted until the early
morning of November 17, 2007. The agency requested that complainant
send in some proof that the complaint was actually faxed on November 16,
but it appears complainant did not submit anything. Complainant also
stated that he had planned to submit the complaint earlier in the day
but was delayed from doing so due to illness.
On April 8, 2008, the agency issued a final decision dismissing the
complaint on the grounds that complainant failed to timely file a formal
complaint. The agency noted that complainant's reasons for the delay
were not sufficient justification to extend the time limitation period.
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 complaint required by 29 C.F.R. � 1614.105(d), (e) or (f).
EEOC Regulation 29 C.F.R �1614.107 (b) 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 �� 1614.105, 1614.106,
and 1614.204(c), unless the agency extends the time limits in accordance
with � 1614.604(c).
When a complainant claims that a medical condition prevents him from
meeting a particular filing deadline, we have held that in order to
justify an untimely filing, the complainant must be so incapacitated
by the condition as to render him unable to make a timely filing. See
Zelmer v. USPS, EEOC Request No. 05890164 (March 8, 1989).
It is undisputed that complainant received the notice of right to file
a formal complaint on November 1, 2007. Although the notice indicated
that complainant had to file a formal complaint within fifteen (15)
calendar days of its receipt, complainant did not file his formal
complaint until November 17, 2007, which is beyond the limitation period.
Complainant has offered no evidence that he was so incapacitated as to be
unable to file his complaint in a timely manner. In fact, complainant
seems to concede that he could have filed his complaint sooner, but was
initially reluctant to do. Additionally, complainant submitted no proof,
even on appeal, of his contention that he had, in fact, timely fax his
complaint on November 16, 2007. For these reasons, we conclude that
complainant has failed to present adequate justification, pursuant to
29 C.F.R. � 1614.604(c), for extending the filing period.
Accordingly, the agency's decision to dismiss complainant's complaint
as untimely was proper and is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0408)
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 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 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 (Z0408)
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, Director
Office of Federal Operations
November 5, 2008
Date
2
0120082579
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
4
0120082579